Attached files
| file | filename |
|---|---|
| EX-5 - EX-5 - FIDELITY SOUTHERN CORP | g23562exv5.htm |
| EX-1 - EX-1 - FIDELITY SOUTHERN CORP | g23562exv1.htm |
| EX-23.(A) - EX-23.(A) - FIDELITY SOUTHERN CORP | g23562exv23wxay.htm |
Table of Contents
As filed with the Securities and Exchange Commission on
May 24, 2010
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-1
Washington, D.C. 20549
Form S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Fidelity Southern
Corporation
(Exact name of registrant as
specified in its charter)
| Georgia | 6022 | 58-1416811 | ||
|
(State or jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
||
3490 Piedmont Road, Suite 1550
Atlanta, Georgia 30305
(404) 240-1504
(Address, including zip code,
and telephone number, including
area code, of principal
executive offices)
James B. Miller, Jr.
Chairman and Chief Executive Officer
3490 Piedmont Road, Suite 1550
Atlanta, Georgia 30305
(404) 240-1504
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Chairman and Chief Executive Officer
3490 Piedmont Road, Suite 1550
Atlanta, Georgia 30305
(404) 240-1504
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications, including copies of all
communications
sent to agent for service, should be sent to:
|
Jackie G. Prester, Esq.
Kevin A. McGill, Esq. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 165 Madison, Suite 2000 Memphis, Tennessee 38103 Telephone: (901) 526-2000 Facsimile: (901) 577-0762 |
James W. Stevens, Esq. Christina M. Gattuso, Esq. Kilpatrick Stockton, LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309 Telephone: (404) 815-6500 Facsimile: (404) 815-6555 |
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this
registration statement becomes effective.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933 check the
following
box. o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
“large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Rule
12b-2 of the
Exchange Act. (Check one):
|
Large accelerated filer o
|
Accelerated filer o |
Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company þ |
CALCULATION
OF REGISTRATION FEE
|
Proposed Maximum |
Amount of |
|||||
|
Title of Each Class of |
Aggregate Offering |
Registration |
||||
| Securities to be Registered | Price(1) | Fee | ||||
|
Common stock
|
$57,500,000 | $4,100 | ||||
| (1) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(o) |
Table of Contents
|
The
information in this preliminary prospectus is not complete and
may be changed. We may not sell these securities until the
registration statement filed with the Securities and Exchange
Commission is effective. This preliminary prospectus is not an
offer to sell these securities and it is not soliciting an offer
to buy these securities in any jurisdiction where the offer or
sale is not permitted. |
SUBJECT
TO COMPLETION DATED MAY 24 , 2010
PRELIMINARY PROSPECTUS
Shares
Common Stock
Fidelity Southern Corporation is the holding company for
Fidelity Bank, a Georgia state bank headquartered in Atlanta,
Georgia.
We are
offering shares
of our common stock on a firm commitment basis. Our common stock
is quoted on the NASDAQ Global Select Market under the symbol
“LION.” The last reported sale of our common stock
on ,
2010 was $ per share.
Investing in our common stock involves risks. See “Risk
Factors” beginning on page 11 to read about factors
you should consider before you make your investment decision.
| Per Share | Total | |||||||
|
Price to public
|
$ | $ | ||||||
|
Underwriting discount(1)
|
$ | $ | ||||||
|
Proceeds to us before expenses
|
$ | $ | ||||||
| (1) | The underwriting discount is $ per share, except with respect to sales to our officers, directors and employees for which the underwriting discount is $ per share. |
We have granted the underwriters a
30-day
option to purchase up to
additional shares of common stock at the same price, and on the
same terms, solely to cover over-allotments, if any.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these
securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
These shares of common stock are not savings accounts,
deposits, or other obligations of any bank and are not insured
by the Federal Deposit Insurance Corporation or any other
governmental agency.
The underwriters expect to deliver the common stock in
book-entry form only, through the facilities of The Depository
Trust Company, against payment on or
about ,
2010.
Sole Book Running Manager
The date of this prospectus
is ,
2010
TABLE OF
CONTENTS
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| 10 | ||||||||
| 11 | ||||||||
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| 22 | ||||||||
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| 23 | ||||||||
| 25 | ||||||||
| 28 | ||||||||
| 30 | ||||||||
| 31 | ||||||||
| 31 | ||||||||
| EX-1 | ||||||||
| EX-5 | ||||||||
| EX-23.(A) | ||||||||
You should rely only on the information contained or
incorporated by reference in this prospectus. We have not
authorized any other person to provide you with different
information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not
making an offer to sell shares of common stock in any
jurisdiction where the offer or sale is not permitted. You
should assume that the information appearing in this prospectus
is accurate only as of the date on the front cover of this
prospectus regardless of the time of delivery of this prospectus
or any sale of the common stock. Our business, financial
condition, results of operations and prospects may have changed
since the date of this prospectus.
In this prospectus, we rely on and refer to information and
statistics regarding the banking industry and our banking
markets. We obtained this market data from independent
publications or other publicly available information. No action
is being taken in any jurisdiction outside the United States to
permit a public offering of our shares of common stock or
possession or distribution of this prospectus in that
jurisdiction. Persons who come into possession of this
prospectus in jurisdictions outside the United States are
required to inform themselves about and to observe any
restrictions as to this offering and the distribution of this
prospectus applicable to those jurisdictions.
Unless the context indicates otherwise, all references in
this prospectus to “we,” “us,” and
“our” refer to Fidelity Southern Corporation and its
wholly owned subsidiaries, except that in the discussion of our
capital stock and related matters, these terms refer solely to
Fidelity Southern Corporation and not to its subsidiaries. All
references to “the Bank” refer to Fidelity Bank
only.
Table of Contents
SUMMARY
The following summary contains material information about us
and this offering. Because it is a summary, it may not contain
all of the information that is important to you. Before making a
decision to invest in our common stock, you should read this
prospectus carefully, including the section entitled “Risk
Factors,” and the information incorporated by reference
into this prospectus, including our audited consolidated
financial statements and the accompanying notes in our Annual
Report on
Form 10-K
for the year ended December 31, 2009 and our unaudited
consolidated financial statements and the accompanying notes in
our Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2010.
Overview
Fidelity Southern Corporation, headquartered in Atlanta,
Georgia, is the holding company for Fidelity Bank. The Bank
operates 23 branches in and around the Atlanta metropolitan area
as well as a branch in Jacksonville, Florida. We also own
LionMark Insurance Company, an insurance agency offering
consumer credit related insurance products. As of March 31,
2010, Fidelity Southern was the fifth largest publicly traded
bank holding company based in Georgia (as measured by total
assets), and the Bank was the largest community bank
headquartered in Atlanta. The Bank is focused on serving
individuals and small businesses primarily in the Atlanta
metropolitan market by offering an array of financial products
and services. The Bank was organized as a national bank in 1974
and converted to a Georgia chartered state bank in 2003.
At March 31, 2010, we reported total assets of
$1.9 billion, total loans of $1.4 billion (of which
$626.0 million represented consumer installment loans that
primarily consist of indirect automobile loans), total deposits
of $1.6 billion, and shareholders’ equity of
$130.8 million.
Our
Business Strategy
Since the Bank’s initial organization in 1974, we have
grown from a small community bank with one branch in the Atlanta
metropolitan area to a 24 branch franchise with
$1.9 billion in total assets. We accomplished this growth
through organic growth rather than acquisitions of other
financial institutions. We seek to further increase our presence
and grow the franchise in the Atlanta metropolitan and
Jacksonville, Florida markets that we presently serve as well as
in neighboring communities that present attractive opportunities
for growth and expansion. Specifically, we intend to continue to
grow our business and create shareholder value by focusing on
the following three operating objectives:
| • | Maintain Our Conservative Lending Philosophy. Management has taken numerous steps to reduce credit risk in the loan portfolio and to strengthen the credit risk management team and processes. A special assets group was organized in 2008 to evaluate potential non performing loans, to properly value non performing assets and to facilitate the timely disposition of these assets while minimizing losses to the Bank. In addition, all credit policies have been reviewed and revised as necessary, and experienced managers are in place and we have strengthened all lending areas and credit administration. Our credit review department regularly reports to senior management and our board of directors regarding the credit quality of the loan portfolio, as well as trends in the portfolio and the adequacy of the allowance for loan losses. Credit review monitors loan concentrations, production, loan growth, and loan quality. Credit review is independent from the lending departments, reviews risk ratings and tests approved credits for adherence to our lending standards. Finally, credit review also performs ongoing, independent reviews of the risk management process and adequacy of loan documentation. The results of its reviews are reported to the board. The consumer collection function is centralized and automated to ensure timely collection of accounts and consistent management of risks associated with delinquent accounts. We believe that our recent results have demonstrated the positive effects of the steps we have taken. Total non performing assets have declined in each of the last four quarters, from $123.5 million at March 31, 2009 or 6.6% of total assets to $88.4 million at March 31, 2010 or 4.7% of total assets, a reduction of over 28.0%. Just as importantly, during this same period, the median non performing assets as a percentage of total assets for publicly traded Georgia banks was 7.7% at March 31, 2010, an increase of nearly 75.0% from 4.4% at March 31, 2009. |
1
Table of Contents
| • | Pursue Selected Acquisitions. We believe that given the current market environment, further consolidation in the financial services industry will occur and we expect to take advantage of selected opportunities to enhance our franchise through acquisitions, including acquisitions of failed or problem financial institutions in transactions assisted by the Federal Deposit Insurance Corporation (FDIC). We intend to grow within our existing markets and to purchase branches or acquire financial institutions in existing markets or other markets consistent with our capital availability and management abilities. Specifically, we believe that we are one of only a few community banks in our local markets with the ability to make strategic acquisitions, and we intend to aggressively pursue strategic transactions accordingly. In the past 18 months, a large number of financial institutions in Georgia and Florida have been placed into FDIC receivership, and we expect that there will be more opportunities to acquire failed or problem financial institutions through assisted transactions in the future. We currently have no definitive plans or commitments regarding potential acquisition opportunities, either through FDIC-assisted transactions or otherwise. | |
| • | Continue Focus on Organic Growth. While we believe that there are opportunities for future growth through acquisitions, we also intend to remain focused on organic growth. We believe that the current economic uncertainties and weaknesses prevalent in our industry generally, as well as with our competitors specifically, provide us with an opportunity to increase market share in the Atlanta metropolitan and Jacksonville, Florida areas. We intend to implement this strategy by further expanding our retail branch network, as well as adding experienced personnel in key areas of our Bank. While we have no commitments to open any new branches during 2010, there are branch locations under consideration and others may become available. In addition to our branch strategy, in January 2009, we hired 58 new employees in a major expansion of our residential mortgage division in Atlanta and continued to hire new employees throughout 2009. |
Our
Strengths
As a retail focused community bank operating primarily in the
Atlanta metropolitan area, we believe that we are well
positioned to further build and expand our franchise by
continuing to leverage our core strengths, which we believe
include the following:
| • | Experienced Management. Our executive officers have many years of banking experience, combined with in-depth knowledge of our Bank and the markets we serve. Our directors collectively have a broad range of experience and knowledge, and their oversight is instrumental in setting our overall direction. We also have highly experienced managers of each of our key business areas, responsible for implementing the strategies established by the board of directors. Our corporate organization provides for centralized decision-making, which we believe enables us to be more flexible and responsive to our customers needs compared to larger financial institutions. We expect our current management team to utilize our strengths and take advantage of opportunities as they present themselves in our markets to achieve our goals of continued growth and improved profitability. | |
| • | Our Markets. Both the Atlanta metropolitan and Jacksonville, Florida areas have experienced significant declines in their economies arising from the recessionary period that began in 2007, resulting in increases in loan delinquencies and declines in demand for banking products and services. However, we believe that these markets contain inherently vibrant communities, with diverse economic foundations, and therefore are attractive areas for future growth. We anticipate that these markets will rebound and demand for banking products and services will continue to grow over the long-term horizon in these areas. Because of the recent declines in our local markets and the impact the declines have had on the financial services industry, we believe that there are opportunities for us to improve our market share in our markets, either through acquisitions or through organic growth. Atlanta continues to be one of the fastest growing cities in the nation, with a weighted average population growth for the Atlanta metropolitan area projected to be 12.74% from 2009 to 2014 (versus 4.63% nationally), according to SNL Financial LC. In addition, in 2010 Forbes Magazine ranked Atlanta fourth in “Cities with the Most Fortune 500 Companies.” Atlanta is also among the leading cities in the country for attracting |
2
Table of Contents
| young, college educated people, ranked as the “Best City for Recent College Graduates” by CareerRookie.com and Apartments.com in May 2010. |
| • | Branch Network and Retail Strategy. We have 23 established branches throughout the Atlanta metropolitan area, have one branch in Jacksonville, Florida, and provide internet banking services through our website. We believe that our locations provide convenience for both business and retail customers. We offer a variety of banking products and services that we believe are comparable to the products offered by the larger financial institutions located in our markets, while providing a high level of personalized service comparable to the smaller community banks in our markets. We believe that our size allows us to remain competitive with our products and flexible to respond to our customers’ needs. | |
| • | Infrastructure for Data and Reporting Systems. We have invested heavily in our electronic data infrastructure and reporting systems. We believe this investment is worthwhile because it helps us service our current customers, and provides a platform for us to expand our operations, whether through organic growth or through acquisitions of other financial institutions in our markets, without incurring significant additional costs to upgrade our data and reporting systems. |
Lending
The Bank’s primary lending activities include consumer
loans (primarily indirect automobile loans), SBA loans,
commercial loans to small and medium sized businesses,
construction loans, and residential real estate loans.
Commercial lending consists of the extension of credit for
business purposes, primarily in the Atlanta metropolitan area.
Indirect automobile loans are originated in Georgia, Florida,
North Carolina, South Carolina, Alabama, and Tennessee. SBA
loans are originated in the Atlanta metropolitan area and
throughout the Southeast. The Bank offers direct installment
loans to consumers on both a secured and unsecured basis.
Secured construction loans to homebuilders and developers and
residential mortgages are primarily made in the Atlanta
metropolitan and Jacksonville, Florida areas. The loans are
generally secured by first real estate mortgages.
3
Table of Contents
The following table presents summary information about our loan
portfolio.
|
March 31, |
December 31, | |||||||||||||||||||||||
| 2010 | 2009 | 2008 | 2007 | 2006 | 2005 | |||||||||||||||||||
| (Dollars in thousands) | ||||||||||||||||||||||||
|
Loans:(1)
|
||||||||||||||||||||||||
|
Commercial, financial and agricultural
|
$ | 103,778 | $ | 113,604 | $ | 137,988 | $ | 107,325 | $ | 107,992 | $ | 88,532 | ||||||||||||
|
Tax exempt commercial
|
5,300 | 5,350 | 7,508 | 9,235 | 14,969 | 7,572 | ||||||||||||||||||
|
Real estate-mortgage commercial
|
312,654 | 287,354 | 202,516 | 189,881 | 163,275 | 104,996 | ||||||||||||||||||
|
Total commercial
|
421,732 | 406,308 | 348,012 | 306,441 | 286,236 | 201,100 | ||||||||||||||||||
|
Real estate-construction
|
133,584 | 154,785 | 245,153 | 282,056 | 306,078 | 257,789 | ||||||||||||||||||
|
Real estate-mortgage residential
|
130,133 | 130,984 | 115,527 | 93,673 | 91,652 | 85,086 | ||||||||||||||||||
|
Consumer installment
|
595,870 | 597,782 | 679,330 | 706,188 | 646,790 | 555,194 | ||||||||||||||||||
|
Loans
|
1,281,319 | 1,289,859 | 1,388,022 | 1,388,358 | 1,330,756 | 1,099,169 | ||||||||||||||||||
|
Allowance for loan losses
|
(29,474 | ) | (30,072 | ) | (33,691 | ) | (16,557 | ) | (14,213 | ) | (12,912 | ) | ||||||||||||
|
Loans, net of allowance
|
$ | 1,251,845 | $ | 1,259,787 | $ | 1,354,331 | $ | 1,371,801 | $ | 1,316,543 | $ | 1,086,257 | ||||||||||||
|
Loans
Held-for-Sale:
|
||||||||||||||||||||||||
|
Residential mortgage
|
$ | 72,603 | $ | 80,869 | $ | 967 | $ | 1,412 | $ | 321 | $ | 1,045 | ||||||||||||
|
Consumer installment
|
30,000 | 30,000 | 15,000 | 38,000 | 43,000 | 26,000 | ||||||||||||||||||
|
SBA
|
15,668 | 20,362 | 39,873 | 24,243 | 14,947 | 3,563 | ||||||||||||||||||
|
Total loans
held-for-sale
|
118,271 | 131,231 | 55,840 | 63,655 | 58,268 | 30,608 | ||||||||||||||||||
|
Total loans
|
$ | 1,399,590 | $ | 1,421,090 | $ | 1,443,862 | $ | 1,452,013 | $ | 1,389,024 | $ | 1,129,777 | ||||||||||||
| (1) | The loan categories in the above schedule are based on certain regulatory definitions and classifications. Certain of the following discussions are in part based on the Bank defined loan portfolios and may not conform to the above classifications. |
Non
Performing Assets
Non performing assets have substantially declined in the past
four quarters, from $123.5 million at March 31, 2009
to $88.4 million at March 31, 2010. Non performing
assets consist of nonaccrual loans, troubled debt restructured
loans, if any, repossessions, and other real estate. Nonaccrual
loans are loans on which the interest accruals have been
discontinued when it appears that future collection of principal
or interest according to the contractual terms may be doubtful.
Troubled debt restructured loans are those loans whose terms
have been modified, because of economic or legal reasons related
to the debtors’ financial difficulties, to provide for a
reduction in principal, change in terms, or modification of
interest rates to below market levels. Repossessions include
vehicles and other personal property that have been repossessed
as a result of payment defaults on indirect automobile loans and
commercial loans.
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Table of Contents
The following table summarizes our non performing assets.
|
March 31, |
December 31, | |||||||||||||||||||||||
| 2010 | 2009 | 2008 | 2007 | 2006 | 2005 | |||||||||||||||||||
| (Dollars in thousands) | ||||||||||||||||||||||||
|
Nonaccrual loans:
|
||||||||||||||||||||||||
|
Construction
|
$ | 44,319 | $ | 56,262 | $ | 86,001 | $ | 11,844 | $ | — | $ | — | ||||||||||||
|
SBA
|
13,409 | 8,193 | 8,245 | 905 | 167 | 73 | ||||||||||||||||||
|
Other
|
4,675 | 5,288 | 3,905 | 1,622 | 4,420 | 1,920 | ||||||||||||||||||
|
Total nonaccrual loans
|
$ | 62,403 | $ | 69,743 | $ | 98,151 | $ | 14,371 | $ | 4,587 | $ | 1,993 | ||||||||||||
|
Repossessions
|
939 | 1,393 | 2,016 | 2,512 | 937 | 819 | ||||||||||||||||||
|
Other real estate:
|
||||||||||||||||||||||||
|
Construction
|
21,039 | 17,881 | 14,081 | 5,731 | — | — | ||||||||||||||||||
|
SBA
|
3,367 | 3,667 | 837 | 1,577 | — | — | ||||||||||||||||||
|
Other
|
608 | 232 | 145 | — | — | — | ||||||||||||||||||
|
Total non performing assets
|
$ | 88,356 | $ | 92,916 | $ | 115,230 | $ | 24,191 | $ | 5,524 | $ | 2,812 | ||||||||||||
|
Loans past due 90 days or more and still accruing
|
$ | 563 | $ | — | $ | — | $ | 23 | $ | — | $ | — | ||||||||||||
|
Ratio of loans past due 90 days or more and still accruing
to total loans
|
— | % | — | % | — | % | — | % | — | % | — | % | ||||||||||||
|
Ratio of non performing assets to total loans, repossessions and
ORE
|
6.20 | % | 6.43 | % | 7.89 | % | 1.65 | % | .40 | % | .25 | % | ||||||||||||
The decrease in non performing assets from December 31,
2009 to March 31, 2010 reflects a $7.3 million
reduction in previously performing loans ($60.5 million of
which is secured by real estate) that were classified as non
performing as a result of charge-offs and principal paydowns
partially offset by a $3.2 million increase in other real
estate as previously non performing real estate loans moved to
foreclosure.
The $62.4 million in nonaccrual loans at March 31,
2010, included $44.3 million in residential construction
related loans, $13.6 million in SBA loans and
$4.5 million in retail and consumer loans. Of the
$44.3 million in residential construction loans on
nonaccrual, $25.6 million represented 111 single family
construction loans with completed homes and homes in various
stages of completion, $15.7 million represented 353 single
family developed lots and $3.0 million represented other
loans. Of the $13.6 million in SBA loans on nonaccrual,
$6.9 million is guaranteed by the SBA.
The $25.0 million in other real estate at March 31,
2010 was made up of four commercial properties with a balance of
$3.4 million and the remainder was residential construction
related balances, which consisted of $9.4 million in 71
residential single family homes completed or substantially
completed, $15.5 million in 339 single family developed
lots, and $556,000 in one parcel of undeveloped land.
Deposits
The Bank offers a full range of depository accounts and services
to both individuals and businesses. During 2009, the Bank
continued a marketing program to increase the number and volume
of our existing customers and accounts, adding new customers,
increasing transaction accounts and helping manage our cost of
funds. We believe the marketing program has been a contributing
factor to the growth in the Bank’s core deposits in 2009.
Based on the success of this program, the Bank is continuing
this marketing program during 2010.
5
Table of Contents
The following table presents summary information about our
deposits.
|
March 31, |
December 31, | |||||||||||||||||||||||
| 2010 | 2009 | 2008 | ||||||||||||||||||||||
| $ | % | $ | % | $ | % | |||||||||||||||||||
| (Dollars in millions) | ||||||||||||||||||||||||
|
Core deposits(1)
|
$ | 1,217.6 | 77.7 | % | $ | 1,194.3 | 77.0 | % | $ | 936.4 | 64.9 | % | ||||||||||||
|
Time deposits greater than $100,000
|
239.4 | 15.3 | 257.4 | 16.6 | 317.5 | 22.0 | ||||||||||||||||||
|
Brokered deposits
|
108.9 | 7.0 | 99.0 | 6.4 | 189.8 | 13.1 | ||||||||||||||||||
|
Total deposits
|
$ | 1,565.9 | 100.0 | % | $ | 1,550.7 | 100.0 | % | $ | 1,443.7 | 100.0 | % | ||||||||||||
| December 31, | ||||||||||||||||||||||||
| 2007 | 2006 | 2005 | ||||||||||||||||||||||
| $ | % | $ | % | $ | % | |||||||||||||||||||
| (Dollars in millions) | ||||||||||||||||||||||||
|
Core deposits(1)
|
$ | 983.5 | 70.0 | % | $ | 978.5 | 70.6 | % | $ | 796.9 | 70.9 | % | ||||||||||||
|
Time deposits greater than $100,000
|
285.5 | 20.3 | 276.5 | 19.9 | 225.2 | 20.0 | ||||||||||||||||||
|
Brokered deposits
|
136.6 | 9.7 | 131.6 | 9.5 | 101.9 | 9.1 | ||||||||||||||||||
|
Total deposits
|
$ | 1,405.6 | 100.0 | % | $ | 1,386.6 | 100.0 | % | $ | 1,124.0 | 100.0 | % | ||||||||||||
| (1) | Core deposits include noninterest-bearing demand, money market and interest-bearing demand, savings deposits, and time deposits less than $100,000. |
Regulatory
In 2009, we entered into a memorandum of understanding with the
Federal Reserve and the Bank entered into a memorandum of
understanding with the FDIC and the Georgia Department of
Banking and Finance. These memorandums of understanding, which
relate primarily to the Bank’s asset quality, loan loss
reserves and capital, require us to submit plans and report to
our regulators regarding the Bank’s loan portfolio and
profit plans, among other matters. The Bank is required to
maintain its Tier 1 Leverage Capital ratio at not less than
8.0% and an overall well-capitalized position as defined in
applicable federal banking rules and regulations during the life
of the memorandum of understanding. The memorandums of
understanding also restrict our ability to pay cash dividends
without the prior consent of our banking regulators.
TARP
Capital Purchase Program
On December 19, 2008, as part of the Department of
Treasury’s capital purchase program, we sold to the
Treasury 48,200 shares of our preferred stock having a
liquidation preference of $1,000 per share, and a ten-year
warrant to purchase up to 2,266,458 shares of our common
stock at an exercise price of $3.19 per share, for an aggregate
purchase price of $48.2 million in cash. As described in
this prospectus, we intend, if and when appropriate, to use a
portion of the proceeds from this offering to redeem some or all
of the outstanding shares of preferred stock issued to Treasury,
as well as the outstanding warrant issued to Treasury, subject
to final approval of Treasury and our federal bank regulator.
Corporate
Information
Our principal executive offices are located at 3490 Piedmont
Road, Suite 1550, Atlanta, Georgia 30305. Our telephone
number is
(404) 240-1504.
Our website is www.lionbank.com. Information on our website is
not incorporated into this prospectus by reference and is not
part of this prospectus.
Risk
Factors
Before investing, you should carefully consider the information
set forth under “Risk Factors,” beginning on
page 11, for a description of the risks related to an
investment in our common stock.
6
Table of Contents
Summary
Consolidated Financial Data
Our summary consolidated financial data presented below as of
and for the quarters ended March 31, 2010 and 2009 and the
years ended December 31, 2009, 2008, 2007, 2006 and 2005
are derived from certain of our unaudited and audited
consolidated financial statements, respectively. Our unaudited
consolidated financial statements as of March 31, 2010 and
for the quarters ended March 31, 2010 and 2009 can be found
in our Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2010, which is incorporated
by reference into this prospectus. Our audited consolidated
financial statements as of December 31, 2009 and 2008, and
for the years ended December 31, 2009, 2008 and 2007 can be
found in our Annual Report on
Form 10-K
for the year ended December 31, 2009, which is incorporated
by reference into this prospectus. The following summary
consolidated financial data should be read in conjunction with
our consolidated financial statements and related notes and with
the “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” sections included in
our Annual Report on
Form 10-K
for the year ended December 31, 2009 and our Quarterly
Report on
Form 10-Q
for the quarter ended March 31, 2010.
|
As of and for the |
|||||||||||||||||||||||||||||
| Quarter Ended March 31, | As of and for the Year Ended December 31, | ||||||||||||||||||||||||||||
| 2010 | 2009 | 2009 | 2008 | 2007 | 2006 | 2005 | |||||||||||||||||||||||
| (Dollars in thousands except per share data) | |||||||||||||||||||||||||||||
|
Summary Balance Sheet:
|
|||||||||||||||||||||||||||||
|
Assets
|
$ | 1,884,493 | $ | 1,875,323 | $ | 1,851,520 | $ | 1,763,113 | $ | 1,686,484 | $ | 1,649,179 | $ | 1,405,703 | |||||||||||||||
|
Loans (net)
|
1,370,116 | 1,407,842 | 1,391,018 | 1,410,171 | 1,435,456 | 1,374,811 | 1,116,865 | ||||||||||||||||||||||
|
Allowance for loan losses
|
29,474 | 35,503 | 30,072 | 33,691 | 16,557 | 14,213 | 12,912 | ||||||||||||||||||||||
|
Deposits
|
1,565,911 | 1,531,132 | 1,550,725 | 1,443,682 | 1,405,625 | 1,386,541 | 1,124,013 | ||||||||||||||||||||||
|
Junior subordinated debentures
|
67,527 | 67,527 | 67,527 | 67,527 | 67,527 | 46,908 | 46,908 | ||||||||||||||||||||||
|
Shareholders equity
|
130,774 | 133,988 | 129,685 | 136,604 | 99,963 | 94,647 | 86,739 | ||||||||||||||||||||||
|
Common equity
|
85,858 | 89,954 | 84,989 | 92,791 | 99,963 | 94,647 | 86,739 | ||||||||||||||||||||||
|
Summary Results of Operations Data:
|
|||||||||||||||||||||||||||||
|
Interest income
|
$ | 23,232 | $ | 23,332 | $ | 97,583 | $ | 104,054 | $ | 113,462 | $ | 97,804 | $ | 74,016 | |||||||||||||||
|
Interest expense
|
8,668 | 12,337 | 46,009 | 57,636 | 66,682 | 54,275 | 34,684 | ||||||||||||||||||||||
|
Net interest income
|
14,564 | 10,995 | 51,574 | 46,418 | 46,780 | 43,529 | 39,332 | ||||||||||||||||||||||
|
Provision for loan losses
|
3,975 | 9,600 | 28,800 | 36,550 | 8,500 | 3,600 | 2,900 | ||||||||||||||||||||||
|
Net interest income after provision for loan losses
|
10,589 | 1,395 | 22,774 | 9,868 | 38,280 | 39,929 | 36,432 | ||||||||||||||||||||||
|
Noninterest income
|
6,507 | 6,815 | 33,978 | 17,636 | 17,911 | 15,699 | 14,339 | ||||||||||||||||||||||
|
Noninterest expense
|
16,994 | 14,020 | 64,562 | 48,839 | 47,203 | 40,568 | 35,001 | ||||||||||||||||||||||
|
Income (loss) before taxes
|
102 | (5,810 | ) | (7,810 | ) | (21,335 | ) | 8,988 | 15,060 | 15,770 | |||||||||||||||||||
|
Income tax expense (benefit)
|
(93 | ) | (2,434 | ) | (3,955 | ) | (9,099 | ) | 2,354 | 4,686 | 5,444 | ||||||||||||||||||
|
Net income (loss)
|
$ | 195 | $ | (3,376 | ) | $ | (3,855 | ) | $ | (12,236 | ) | $ | 6,634 | $ | 10,374 | $ | 10,326 | ||||||||||||
|
Net income (loss) available to common shareholders
|
$ | (628 | ) | $ | (4,199 | ) | $ | (7,148 | ) | $ | (12,342 | ) | $ | 6,634 | $ | 10,374 | $ | 10,326 | |||||||||||
|
Dividends and accretion on preferred stock
|
$ | 823 | $ | 823 | $ | 3,293 | $ | 106 | N/A | N/A | N/A | ||||||||||||||||||
|
Per Share Data:(1)
|
|||||||||||||||||||||||||||||
|
Net income (loss), basic
|
$ | (0.06 | ) | $ | (0.42 | ) | $ | (0.71 | ) | $ | (1.27 | ) | $ | 0.69 | $ | 1.09 | $ | 1.09 | |||||||||||
|
Net income (loss), diluted
|
(0.06 | ) | (0.42 | ) | (0.71 | ) | (1.27 | ) | 0.69 | 1.09 | 1.09 | ||||||||||||||||||
|
Book value
|
8.25 | 9.04 | 8.44 | 9.42 | 10.35 | 9.88 | 9.10 | ||||||||||||||||||||||
|
Common shares outstanding
|
10,403,013 | 9,950,020 | 10,064,299 | 9,855,413 | 9,661,445 | 9,580,763 | 9,530,268 | ||||||||||||||||||||||
|
Weighted average number of shares outstanding:
|
|||||||||||||||||||||||||||||
|
Basic
|
10,253,146 | 9,944,696 | 10,002,610 | 9,717,238 | 9,614,382 | 9,549,673 | 9,223,723 | ||||||||||||||||||||||
|
Diluted
|
10,253,146 | 9,944,696 | 10,002,610 | 9,717,238 | 9,628,766 | 9,561,410 | 9,503,917 | ||||||||||||||||||||||
7
Table of Contents
|
As of and for the |
|||||||||||||||||||||||||||||
| Quarter Ended March 31, | As of and for the Year Ended December 31, | ||||||||||||||||||||||||||||
| 2010 | 2009 | 2009 | 2008 | 2007 | 2006 | 2005 | |||||||||||||||||||||||
| (Dollars in thousands except per share data) | |||||||||||||||||||||||||||||
|
Performance Ratios:
|
|||||||||||||||||||||||||||||
|
Return on average assets
|
0.04 | % | (0.77 | )% | (0.21 | )% | (0.70 | )% | 0.41 | % | 0.70 | % | 0.79 | % | |||||||||||||||
|
Return on average equity
|
0.61 | (10.13 | ) | (2.91 | ) | (12.43 | ) | 6.84 | 11.67 | 12.59 | |||||||||||||||||||
|
Net interest margin
|
3.40 | 2.67 | 2.95 | 2.84 | 3.04 | 3.10 | 3.17 | ||||||||||||||||||||||
|
Efficiency ratio(2)
|
80.65 | 78.72 | 80.46 | 77.83 | 72.97 | 68.49 | 65.25 | ||||||||||||||||||||||
|
Loan to deposit ratio
|
81.83 | 87.26 | 91.64 | 100.01 | 103.30 | 100.18 | 100.51 | ||||||||||||||||||||||
|
Asset Quality Ratios:
|
|||||||||||||||||||||||||||||
|
Non performing loans to total loans
|
4.46 | % | 7.29 | % | 4.91 | % | 6.80 | % | 0.99 | % | 0.33 | % | 0.18 | % | |||||||||||||||
|
Non performing assets to total assets
|
4.69 | 6.59 | 5.02 | 6.54 | 1.43 | 0.33 | 0.20 | ||||||||||||||||||||||
|
Net charge-offs to average total loans
|
1.45 | 2.32 | 2.44 | 1.36 | 0.45 | 0.19 | 0.23 | ||||||||||||||||||||||
|
Allowance for loan losses to non performing loans
|
47.23 | 33.74 | 43.12 | 34.33 | 115.21 | 309.85 | 647.87 | ||||||||||||||||||||||
|
Allowance for loan losses to total loans
|
2.30 | 2.66 | 2.33 | 2.43 | 1.19 | 1.07 | 1.17 | ||||||||||||||||||||||
|
Capital Ratios:
|
|||||||||||||||||||||||||||||
|
Equity to assets ratio
|
6.94 | % | 7.14 | % | 7.00 | % | 7.75 | % | 5.93 | % | 5.74 | % | 6.17 | % | |||||||||||||||
|
Common equity to assets ratio(3)
|
4.56 | 4.80 | 4.59 | 5.26 | 5.93 | 5.74 | 6.17 | ||||||||||||||||||||||
|
Leverage ratio
|
9.11 | 9.26 | 9.03 | 10.04 | 7.93 | 8.07 | 8.64 | ||||||||||||||||||||||
|
Tier 1 risk-based capital ratio
|
11.34 | 10.58 | 11.25 | 11.10 | 8.43 | 8.54 | 9.60 | ||||||||||||||||||||||
|
Total risk-based capital ratio
|
14.08 | 13.24 | 13.98 | 13.67 | 11.54 | 10.37 | 11.97 | ||||||||||||||||||||||
|
Growth Rates:
|
|||||||||||||||||||||||||||||
|
Percentage change in assets
|
0.5 | % | 8.0 | % | 5.0 | % | 4.5 | % | 2.3 | % | 17.3 | % | 14.9 | % | |||||||||||||||
|
Percentage change in net loans
|
(2.7 | ) | (3.4 | ) | (1.4 | ) | (1.8 | ) | 4.4 | 23.1 | 13.6 | ||||||||||||||||||
|
Percentage change in deposits
|
2.3 | 9.2 | 7.4 | 2.7 | 1.4 | 23.4 | 10.6 | ||||||||||||||||||||||
|
Percentage change in shareholders’ equity
|
(2.4 | ) | 32.5 | (5.1 | ) | 36.7 | 5.6 | 9.1 | 10.1 | ||||||||||||||||||||
|
Other Data:
|
|||||||||||||||||||||||||||||
|
Number of banking offices
|
24 | 24 | 24 | 24 | 24 | 21 | 19 | ||||||||||||||||||||||
|
Number of employees (FTE’s)
|
518 | 438 | 488 | 366 | 406 | 374 | 356 | ||||||||||||||||||||||
| (1) | Adjusted for stock dividends. | |
| (2) | Computed by dividing noninterest expense by the sum of net interest income and noninterest income. Securities gains and losses and impairment charges are excluded from noninterest income for calculation purposes. | |
| (3) | Computed by subtracting preferred stock from total equity and dividing by total assets. |
8
Table of Contents
The
Offering
| Common stock offered by us | shares(1) | |
| Common stock outstanding after the offering | shares(2) | |
| Net proceeds | The net proceeds, after underwriting discount and estimated expenses, to us from the sale of the common stock offered will be approximately $ million (or approximately $ million if the underwriters exercise their over-allotment option in full). | |
| Use of proceeds | We intend to use the proceeds of this offering to execute our strategic initiatives, including pursuing FDIC-assisted or other acquisitions of financial institutions, providing capital for organic growth, and for general corporate purposes. When appropriate, we may use some of the proceeds to redeem all or some of the preferred shares and warrant held by Treasury, subject to final approval by the Treasury and our federal banking regulator. | |
| Dividends on common stock | Future dividends are at the discretion of our board of directors and will require a quarterly review of current and projected earnings for the remainder of 2010 in relation to capital requirements prior to the determination of the dividend, and be subject to regulatory restrictions under applicable law and the requirements of the memorandums of understanding we have entered into with our banking regulators. The memorandums of understanding require that, prior to declaring or paying any cash dividends, we obtain the prior consent of its regulators. | |
| The NASDAQ Global Select Market symbol | LION |
| (1) | The number of shares offered assumes that the underwriters’ over-allotment option is not exercised. If the over-allotment option is exercised in full, we will issue and sell an additional shares. | |
| (2) | The number of shares outstanding after the offering is based on the number of shares outstanding as of May 24, 2010 and assumes that the underwriters’ over-allotment option is not exercised. The number of outstanding shares does not include shares reserved for issuance under our 2006 Equity Incentive Plan or shares underlying outstanding options and warrants. As of May 24, 2010, the Company had outstanding stock options to purchase an aggregate of 494,405 shares of common stock, of which 255,699 shares were vested with a weighted average exercise price of $12.11 per share. We have an additional 152,517 shares reserved for issuance under our 2006 Equity Incentive Plan pursuant to which we may grant additional stock options or issue shares of restricted stock and 2,266,458 shares reserved for issuance under the terms of the warrant issued to Treasury. |
9
Table of Contents
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in, or incorporated by reference
into, this prospectus are forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act of
1934, as amended, that reflect our current expectations relating
to present or future trends or factors generally affecting the
banking industry and specifically affecting our operations,
markets and products. Without limiting the foregoing, the words
“believes”, “expects”,
“anticipates”, “estimates”,
“projects”, “intends”, and similar
expressions are intended to identify forward-looking statements.
These forward-looking statements are based upon assumptions we
believe are reasonable and may relate to, among other things,
the deteriorating economy and its impact on operating results
and credit quality, the adequacy of the allowance for loan
losses, changes in interest rates, and litigation results. These
forward-looking statements are subject to risks and
uncertainties. Actual results could differ materially from those
projected for many reasons, including without limitation,
changing events and trends that have influenced our assumptions.
These trends and events include (1) the continued decline
in real estate values in the Atlanta, Georgia, metropolitan area
and in eastern and northern Florida markets; (2) general
business and economic conditions; (3) conditions in the
financial markets and economic conditions generally and the
impact of recent efforts to address difficult market and
economic conditions; (4) our liquidity and sources of
liquidity; (5) the terms of the U.S. Treasury
Department’s equity investment in us, and the resulting
limitations on executive compensation imposed through our
participation in the TARP Capital Purchase Program; (6) a
stagnant economy and its impact on operations and credit
quality; (7) uncertainty with respect to future
governmental economic and regulatory measures, including the
ability of the Treasury to unilaterally amend any provision of
the purchase agreement we entered into as part of the TARP
Capital Purchase Program, the winding down of governmental
emergency measures intended to stabilize the financial system,
and numerous legislative proposals to further regulate the
financial services industry; (8) unique risks associated
with our construction and land development loans; (9) our
ability to raise capital; (10) the impact of a recession on
our consumer loan portfolio and its potential impact on our
commercial portfolio; (11) economic conditions in Atlanta,
Georgia; (12) our ability to maintain and service
relationships with automobile dealers and indirect automobile
loan purchasers and our ability to profitably manage changes in
our indirect automobile lending operations; (13) the
accuracy and completeness of information from customers and our
counterparties; (14) changes in the interest rate
environment and their impact on our net interest margin;
(15) difficulties in maintaining quality loan growth;
(16) less favorable than anticipated changes in the
national and local business environment, particularly in regard
to the housing market in general and residential construction
and new home sales in particular; (17) the impact of and
adverse changes in the governmental regulatory requirements
affecting us; (18) the effectiveness of our controls and
procedures; (19) our ability to attract and retain skilled
people; (20) greater competitive pressures among financial
institutions in our markets; (21) changes in political,
legislative and economic conditions; (22) inflation;
(23) greater loan losses than historic levels and an
insufficient allowance for loan losses; (24) failure to
achieve the revenue increases expected to result from our
investments in our growth strategies, including our branch
additions and in our transaction deposit and lending businesses;
(25) the volatility and limited trading of our common
stock; and (26) the impact of dilution on our common stock.
This list is intended to identify some of the principal factors
that could cause actual results to differ materially from those
described in the forward-looking statements included in this
prospectus and are not intended to represent a complete list of
all risks and uncertainties in our business. Investors are
encouraged to read the related section in our 2009 Annual Report
on
Form 10-K,
including the “Risk Factors” set forth in our Annual
Report. Additional information and other factors that could
affect future financial results are included in our filings with
the Securities and Exchange Commission.
All written or oral forward-looking statements attributable to
us are expressly qualified in their entirety by this Cautionary
Note. Our actual results may differ significantly from those we
discuss in these forward-looking statements. For other factors,
risks and uncertainties that could cause our actual results to
differ materially from estimates and projections contained in
these forward-looking statements, please read the “Risk
Factors” section of this prospectus. Any forward-looking
statement speaks only as of the date that the statement was
made, and, except as required by law, we expressly disclaim any
obligation or undertaking to disseminate any updates or
revisions to any forward-looking statement to reflect events or
circumstances after the date on which we made the statement or
to reflect the occurrence of unanticipated events.
10
Table of Contents
RISK
FACTORS
An investment in our common stock involves a high degree of
risk. In evaluating an investment in the common stock, you
should consider carefully the risks described below, the risk
factors set forth in our Annual Report on
Form 10-K
for the year ended December 31, 2009, which are
incorporated by reference in this prospectus, and the risks we
have highlighted in other sections of this prospectus These
highlight the most significant factors that affect an investment
in our common stock. If any of the events described in the risk
factors actually occurs, or if additional risks and
uncertainties not presently known to us or that we currently
deem immaterial, materialize, then our business, results of
operations and financial condition could be materially adversely
affected. The risks discussed below include forward-looking
statements, and our actual results may differ substantially from
those discussed in these forward-looking statements.
Risks
Related to Our Business
A
significant portion of the Bank’s loan portfolio is secured
by real estate loans in the Atlanta metropolitan area and in the
eastern and northern Florida markets, and a continued downturn
in real estate market values in those areas may adversely affect
our business.
Currently, our lending and other businesses are concentrated in
the Atlanta metropolitan area and eastern and northern Florida.
As of March 31, 2010, real estate mortgage, construction
and commercial real estate loans, accounted for 47.5% of our
total loan portfolio. Therefore, conditions in these markets
will strongly affect the level of our non performing loans and
our results of operations and financial condition. Real estate
values and the demand for commercial and residential mortgages
and construction loans are affected by, among other things,
changes in general and local economic conditions, changes in
governmental regulation, monetary and fiscal policies, interest
rates and weather. The residential real estate markets in
Atlanta and Jacksonville continue to experience a slowdown in
sales and continued pricing declines. Continued declines in our
real estate markets could adversely affect the demand for new
real estate loans and the value and liquidity of the collateral
securing our existing loans. Adverse changes in our markets
could also reduce our growth rate, impair our ability to collect
loan amounts when due and generally affect our financial
condition and results of operations.
Construction
and land development loans are subject to unique risks that
could adversely affect earnings.
Our construction and land development loan portfolio was
$133.6 million at March 31, 2010, comprising 9.5% of
total loans. During general economic slowdowns, like the one we
are currently experiencing, these loans represent higher risk
due to slower sales and reduced cash flow that could impact the
borrowers’ ability to repay on a timely basis. In addition,
regulations and regulatory policies affecting banks and
financial services companies undergo continuous change and we
cannot predict when changes will occur or the ultimate effect of
any changes. Since the latter part of 2006, there has been
continued regulatory focus on construction, development and
commercial real estate lending. Changes in the federal policies
applicable to construction, development or commercial real
estate loans make us subject to substantial limitations with
respect to making such loans, increase the costs of making such
loans, and require us to have a greater amount of capital to
support this kind of lending, all of which could have a material
adverse effect on our profitability or financial condition.
The
allowance for loan losses may be insufficient.
The Bank maintains an allowance for loan losses, which is
established and maintained through provisions charged to
operations. Such provisions are based on management’s
evaluation of the loan portfolio, including loan portfolio
concentrations, current economic conditions, the economic
outlook, past loan loss experience, adequacy of underlying
collateral and such other factors which, in management’s
judgment, deserve consideration in estimating loan losses. Loans
are charged off when, in the opinion of management, such loans
are deemed to be uncollectible. Subsequent recoveries are added
to the allowance.
The determination of the appropriate level of the allowance for
loan losses inherently involves a high degree of subjectivity
and requires management to make significant estimates of current
credit risks and
11
Table of Contents
trends, all of which may undergo material changes. Changes in
economic conditions affecting borrowers, new information
regarding existing loans, identification of additional problem
loans and other factors may require an increase in the allowance
for loan losses. In addition, bank regulatory agencies
periodically review the Bank’s allowance for loan losses
and may require an increase in the provision for loan losses or
the recognition of further loan charge-offs, based on judgments
different than those of management. In addition, if charge-offs
in future periods exceed the estimated charge-offs utilized in
determining the sufficiency of the allowance for loan losses, we
will need additional provisions to increase the allowance. Any
increases in the allowance for loan losses will result in a
decrease in net income and, possibly, regulatory capital, and
may have a material adverse effect on our financial condition
and results of operations.
Our
profitability depends significantly on economic conditions in
the Atlanta metropolitan area.
Our success depends primarily on the general economic conditions
of the Atlanta metropolitan area and the specific local markets
in which we operate. Unlike larger national or regional banks
that are more geographically diversified, the Bank provides
banking and financial services to customers primarily in the
Atlanta metropolitan area including Fulton, Dekalb, Cobb,
Clayton, Gwinnett, Rockdale, Coweta and Barrow Counties. The
local economic conditions in these areas have a significant
impact on the demand for our products and services as well as
the ability of our customers to repay loans, the value of the
collateral securing loans and the stability of our deposit
funding sources. A significant decline in general economic
conditions, caused by a significant economic slowdown,
recession, inflation, acts of terrorism, outbreak of
hostilities, or other international or domestic occurrences,
unemployment, changes in securities markets, or other factors
could impact these local economic conditions and, in turn, have
a material adverse effect on our financial condition and results
of operations.
The
Bank may be unable to maintain and service relationships with
automobile dealers and the Bank is subject to their willingness
and ability to provide high quality indirect automobile
loans.
The Bank’s indirect automobile lending operation depends in
large part upon the ability to maintain and service
relationships with automobile dealers, the strength of new and
used automobile sales, the loan rate and other incentives
offered by other purchasers of indirect automobile loans or by
the automobile manufacturers and their captive finance
companies, and the continuing ability of the consumer to qualify
for and make payments on high quality automobile loans. There
can be no assurance the Bank will be successful in maintaining
such dealer relationships or increasing the number of dealers
with which the Bank does business, or that the existing dealer
base will continue to generate a volume of finance contracts
comparable to the volume historically generated by such dealers,
which could have a material adverse effect on our financial
condition and results of operations.
We
have entered into memorandums of understanding under which our
regulators require us to take certain actions.
Since 2009, we have been subject to a memorandum of
understanding issued by the Federal Reserve and the Bank has
been subject to a memorandum of understanding issued by the
Georgia Department of Banking and Finance and the FDIC. While
the memorandums of understanding remain in place, neither we nor
the Bank may pay cash dividends without the prior written
consent of the banking regulators and the Bank may not extend
any additional credit to any borrower that has been charged off
by the Bank or classified as substandard, doubtful or loss in
any report of examination as long as the credit remains
uncollected without the prior consent of the banking regulators.
The Bank is also required to maintain a minimum leverage capital
ratio of at least 8.0%. We believe that we are in compliance
with the memorandums of understanding. However, there is no
assurance that our regulators will determine that we are in full
compliance. Any material failure to comply with the terms of the
memorandums of understanding could result in further enforcement
action by the supervisory authorities.
12
Table of Contents
The
earnings of financial services companies are significantly
affected by general business and economic
conditions.
Our operations and profitability are impacted by general
business and economic conditions in the United States and
abroad. These conditions include recession, short-term and
long-term interest rates, inflation, money supply, political
issues, legislative and regulatory changes, fluctuations in both
debt and equity capital markets, broad trends in industry and
finance, and the strength of the U.S. economy and the local
economies in which we operate, all of which are beyond our
control. Deterioration in economic conditions could result in an
increase in loan delinquencies and non performing assets,
decreases in loan collateral values and a decrease in demand for
our products and services, among other things, any of which
could have a material adverse impact on our financial condition
and results of operations.
Our
business may be adversely affected by conditions in the
financial markets and economic conditions generally and there
can be no assurance that recent efforts to address difficult
market and economic conditions will be effective.
The capital and credit markets have experienced unprecedented
levels of volatility and disruption over the last two years. As
a consequence of the economic slowdown, business activity across
a wide range of industries face serious difficulties due to the
lack of consumer spending and the lack of liquidity in the
global credit markets. Unemployment has also increased
significantly. The general business environment has had an
adverse effect on our business, and there can be no assurance
that the environment will improve in the near term. Until
conditions improve, we expect our business, financial condition
and results of operations to be adversely affected.
Legislative
and regulatory actions taken now or in the future may have a
significant adverse effect on our operations.
Recent events in the financial services industry and, more
generally, in the financial markets and the economy, have led to
various proposals for changes in the regulation of the financial
services industry. For example, one of the financial services
reform bills currently under consideration in Congress includes
provisions that would require bank holding companies to exclude
trust preferred securities from consolidated Tier 1
capital. There can be no assurance that this particular
provision, or any other aspects of current proposed regulatory
or legislative changes to laws applicable to the financial
industry will ultimately be enacted or adopted. However, any
such changes, if enacted or adopted, may impact the
profitability of our business activities, require we raise
additional capital or change certain of our business practices,
require us to divest certain business lines, materially affect
our business model or affect retention of key personnel, and
could expose us to additional costs, including increased
compliance costs. These changes may also require us to invest
significant management attention and resources to make any
necessary changes, and could therefore also adversely affect our
business and operations.
Liquidity
is essential to our businesses and we rely on external sources
to finance a significant portion of our
operations.
Liquidity is essential to our businesses. Our liquidity could be
substantially affected in a negative fashion by an inability to
raise funding in the long-term or short-term debt capital
markets or the equity capital markets or an inability to access
the secured lending markets. Factors that we cannot control,
such as disruption of the financial markets or negative views
about the financial services industry generally, could impair
our ability to raise funding. In addition, our ability to raise
funding could be impaired if lenders develop a negative
perception of our long-term or short-term financial prospects.
Such negative perceptions could be developed if we suffer a
decline in the level of our business activity or regulatory
authorities take significant action against us, among other
reasons. If we are unable to raise funding using the methods
described above, we would likely need to finance or liquidate
unencumbered assets to meet maturing liabilities. We may be
unable to sell some of our assets, or we may have to sell assets
at a discount from market value, either of which could adversely
affect our results of operations and financial condition.
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Future
dividend payments and common stock repurchases are restricted by
the terms of the Treasury’s equity investment in
us.
Under the terms of the Capital Purchase Program, until the
earlier of the third anniversary of the date of issuance of the
preferred shares and the date on which the preferred shares have
been redeemed in whole or the Treasury has transferred all of
the preferred shares to third parties, we are prohibited from
increasing dividends on our common stock from the last quarterly
cash dividend per share ($0.01) declared on the common stock
prior to December 19, 2008, as adjusted for subsequent
stock dividends and other similar actions, and from making
certain repurchases of equity securities, including our common
stock, without the Treasury’s consent. Furthermore, as long
as the preferred shares are outstanding, dividend payments and
repurchases or redemptions relating to certain equity
securities, including our common stock, are prohibited until all
accrued and unpaid dividends are paid on such preferred stock,
subject to certain limited exceptions.
We may
not be able to attract and retain skilled people, especially
considering the limitations on executive compensation imposed
through our participation in the Capital Purchase
Program.
Our success depends, in large part, on our ability to attract
and retain key people. Competition for the best people in most
activities that we engage in can be intense and we may not be
able to hire people or to retain them. The unexpected loss of
services of one or more of our key personnel could have a
material adverse impact on our business because of their skills,
knowledge of our markets, years of industry experience, and the
difficulty of promptly finding qualified replacement personnel.
As part of our participation in the Capital Purchase Program, we
agreed to be bound by certain executive compensation
restrictions, including limitations on severance payments and
the clawback of any bonus and incentive compensation that were
based on materially inaccurate financial statements or any other
materially inaccurate performance metric criteria. Subsequent to
the issuance of the preferred shares, new legislation was
enacted, which provides more stringent limitations on severance
pay and the payment of bonuses. To the extent that any of these
compensation restrictions do not permit us to provide a
comprehensive compensation package to our key employees that is
competitive in our markets, we may have difficulty in
attracting, retaining and motivating our key employees, which
could have an adverse effect on our results of operations.
The
terms governing the issuance of the preferred shares to the
Treasury may be changed, the effect of which may have an adverse
effect on our operations.
The terms of the agreement which we entered into with the
Treasury provide that the Treasury may unilaterally amend any
provision of the agreement to the extent required to comply with
any changes in applicable federal law that may occur in the
future. We have no assurances that changes in the terms of the
transaction will not occur in the future. Such changes may place
restrictions on our business or results of operations, which may
adversely affect the market price of our common stock.
Fluctuations
in interest rates could reduce our profitability and affect the
value of our assets.
Like other financial institutions, our earnings and cash flows
are subject to interest rate risk. Our primary source of income
is net interest income, which is the difference between interest
earned on loans and investments and the interest paid on
deposits and borrowings. We expect that we will periodically
experience imbalances in the interest rate sensitivities of our
assets and liabilities and the relationships of various interest
rates to each other. Over any defined period of time, our
interest-earning assets may be more sensitive to changes in
market interest rates than our interest-bearing liabilities, or
vice versa. In addition, the individual market interest rates
underlying our loan and deposit products (e.g., prime versus
competitive market deposit rates) may not change to the same
degree over a given time period. In any event, if market
interest rates should move contrary to our position, our
earnings may be negatively affected. Also, the volume of non
performing assets will negatively impact average yields if and
as it increases. In addition, loan volume and quality and
deposit volume and mix can be affected by market interest rates.
Changes in levels of market interest rates, including the
current rate environment, could materially adversely affect our
net interest spread, asset quality, origination volume and
overall profitability.
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In September 2007, the Federal Reserve began lowering the
targeted Federal funds rate, reducing the rate to 4.25% by the
end of 2007. In 2008, as the economic crisis deepened, the
Federal Reserve continued to lower interest rates to a historic
low of .25% where it remained for all of 2009. While these
short-term market interest rates (which we use as a guide to
price our deposits) decreased, the yield on our earning assets
decreased more quickly which in combination with heavy
competition for deposit accounts had a negative impact on our
interest rate spread and net interest margin during 2008 and
into 2009. Income could also be adversely affected if the
interest rates paid on deposits and other borrowings increase
quicker than the interest rates received on loans and other
investments during periods of rising interest rates.
We principally manage interest rate risk by managing our volume
and the mix of our earning assets and funding liabilities. In a
changing interest rate environment, we may not be able to manage
this risk effectively. If we are unable to manage interest rate
risk effectively, our business, financial condition, and results
of operations could be materially harmed.
Changes in the level of interest rates also may negatively
affect our ability to originate loans, the value of our assets,
and our ability to realize gains from the sale of our assets,
all of which ultimately affect our earnings.
We
operate in a highly competitive industry and
markets.
We face substantial competition in all areas of our operations
from a variety of different competitors, many of which are
larger and have more financial resources. Such competitors
primarily include national, regional, and community banks within
the markets in which we operate. Additionally, various
out-of-state
banks continue to enter the markets in which we currently
operate. We also face competition from many other types of
financial institutions, including, without limitation, savings
and loans, credit unions, finance companies, brokerage firms,
insurance companies, and other financial intermediaries. Many of
our competitors have fewer regulatory constraints and may have
lower cost structures. Additionally, due to their size, many
competitors may be able to achieve economies of scale and, as a
result, may offer a broader range of products and services, as
well as better pricing for those products and services. A
weakening in our competitive position, could adversely affect
our growth and profitability, which, in turn, could have a
material adverse effect on our financial condition and results
of operations.
Financial
services companies depend on the accuracy and completeness of
information about customers and counterparties.
In deciding whether to extend credit or enter into other
transactions, we may rely on information furnished by or on
behalf of customers and counterparties, including financial
statements, credit reports, and other financial information. We
may also rely on representations of those customers,
counterparties or other third parties, such as independent
auditors, as to the accuracy and completeness of that
information. Reliance on inaccurate or misleading financial
statements, credit reports or other financial information could
have a material adverse impact on our business and, in turn, our
financial condition and results of operations.
We are
subject to extensive governmental regulation.
We are subject to extensive supervision and regulation by
Federal and state governmental agencies. Current and future
legislation, regulations, and government policy could adversely
affect us and the financial institution industry as a whole,
including the cost of doing business. Although the impact of
such legislation, regulations, and policies cannot be predicted,
future changes may alter the structure of, and competitive
relationships among, financial institutions and the cost of
doing business, which could have a material adverse effect on
our financial condition and results of operations.
Our
growth may require us to raise additional capital in the future,
but that capital may not be available when it is
needed.
We are required by Federal regulatory authorities to maintain
adequate levels of capital to support our operations. We
anticipate our capital resources will satisfy our capital
requirements for the foreseeable future.
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We may at some point, however, need to raise additional capital
to support our growth. If we raise capital through the issuance
of additional shares of our common stock or other securities, it
would dilute the ownership interest of our current shareholders
and may dilute the per share book value of our common stock. New
investors may also have rights, preferences and privileges
senior to our current shareholders, which may adversely impact
our current shareholders.
Our ability to raise additional capital, if needed, will depend
on conditions in the capital markets at that time, which are
outside our control, and on our financial performance.
Accordingly, we cannot assure that we will have the ability to
raise additional capital, if needed, on terms acceptable to us.
If we cannot raise additional capital when needed, our ability
to further expand our operations through organic growth or
acquisitions could be materially impaired, which could have a
material adverse effect on our financial condition and results
of operations.
The
building of market share through our branch strategy could cause
our expenses to increase faster than revenues.
We intend to continue to build market share in the greater
Atlanta metropolitan area through our branch strategy. While we
have no commitments to branch during 2010, there are branch
locations under consideration and others may become available.
There are considerable costs involved in opening branches and
new branches generally require a period of time to generate
sufficient revenues to offset their costs, especially in areas
in which we do not have an established presence. Accordingly,
any new branch can be expected to negatively impact our earnings
for some period of time until the branch reaches certain
economies of scale. Our expenses could be further increased if
we encounter delays in the opening of new branches. Finally, we
have no assurance that new branches will be successful, even
after they have been established.
Potential
acquisitions may disrupt our business and dilute shareholder
value.
From time to time, we may evaluate merger and acquisition
opportunities and conduct due diligence activities related to
possible transactions with other financial institutions. There
is no assurance that any acquisitions will occur in the future.
However, if we do acquire other banks, businesses, or branches,
such acquisitions would involve various risks, including the
following:
| • | potential exposure to unknown or contingent liabilities of the target company; | |
| • | exposure to potential asset quality issues of the target company; | |
| • | difficulty and expense of integrating the operations and personnel of the target company; | |
| • | potential disruption to our business; | |
| • | potential diversion of management’s time and attention; | |
| • | the possible loss of key employees and customers of the target company; | |
| • | difficulty in estimating the value of the target company; and | |
| • | potential changes in banking or tax laws or regulations that may affect the target company. |
If we were to pay for acquisitions with shares of our common
stock, some dilution of our tangible book value and net income
per common share may occur since acquisitions may involve the
payment of a premium over book and market values. Furthermore,
failure to realize the expected benefits of an acquisition, such
as anticipated revenue increases, cost savings, or increased
geographic or product presence, could have a material adverse
effect on our financial condition and results of operations.
Our
controls and procedures may fail or be
circumvented.
Management regularly reviews and updates our internal controls,
disclosure controls and procedures, and corporate governance
policies and procedures. Any system of controls, however well
designed and operated, is based in part on certain assumptions
and can provide only reasonable, not absolute, assurances that
the
16
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objectives of the system are met. Any failure or circumvention
of our controls and procedures or failure to comply with
regulations related to controls and procedures could have a
material adverse effect on our business, results of operations,
and financial condition.
Our
information systems may experience an interruption or breach in
security.
We rely heavily on communications and information systems to
conduct our business. Any failure, interruption or breach in
security of these systems could result in failures or
disruptions in our customer relationship management, general
ledger, deposit, loan, and other systems. While we have policies
and procedures designed to prevent or limit the effect of the
failure, interruption or security breach of our information
systems, there can be no assurance that any such failures,
interruptions or security breaches will not occur or, if they do
occur, that they will be adequately addressed. The occurrence of
any failures, interruptions or security breaches of our
information systems could damage our reputation, result in a
loss of customer business, subject us to additional regulatory
scrutiny, or expose us to civil litigation and possible
financial liability, any of which could have a material adverse
effect on our financial condition and results of operations.
We are
subject to claims and litigation.
From time to time, customers and others make claims and take
legal action pertaining to our performance of our
responsibilities. Whether customer claims and legal action
related to our performance of our responsibilities are founded
or unfounded, or if such claims and legal actions are not
resolved in a manner favorable to us, they may result in
significant financial liability
and/or
adversely affect the market perception of us and our products
and services, as well as impact customer demand for those
products and services. Any financial liability or reputation
damage could have a material adverse effect on our business,
which, in turn, could have a material adverse effect on our
financial condition and results of operations.
Further
increases in FDIC premiums could have a material adverse effect
on our future earnings.
The FDIC insures deposits at FDIC insured financial
institutions, including the Bank. The FDIC charges the insured
financial institutions premiums to maintain the Deposit
Insurance Fund at an adequate level. In light of current
economic conditions, the FDIC has increased its assessment rates
and imposed special assessments. The FDIC may further increase
these rates and impose additional special assessments in the
future, which could have a material adverse effect on future
earnings.
There
are substantial regulatory limitations on changes of control of
bank holding companies.
With certain limited exceptions, federal regulations prohibit a
person or company or a group of persons deemed to be
“acting in concert” from, directly or indirectly,
acquiring more than 10% (5% if the acquirer is a bank holding
company) of any class of our voting stock or obtaining the
ability to control in any manner the election of a majority of
our directors or otherwise direct the management or policies of
our company without prior notice or application to and the
approval of the Federal Reserve. Accordingly, prospective
investors need to be aware of and comply with these
requirements, if applicable, in connection with any purchase of
shares of our common stock.
Risks
Related to our Common Stock
Our
stock price can be volatile.
Stock price volatility may make it more difficult for
shareholders to resell common stock when they want and at prices
they find attractive. Our stock price can fluctuate
significantly in response to a variety of factors including,
among other things:
| • | news reports relating to trends, concerns and other issues in the financial services industry; | |
| • | actual or anticipated variations in quarterly results of operations; |
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| • | recommendations by securities analysts; | |
| • | operating and stock price performance of other companies that investors deem comparable to us; | |
| • | perceptions in the marketplace regarding us and/or our competitors; | |
| • | significant acquisitions or business combinations, strategic partnerships, joint ventures or capital commitments by or involving us or our competitors; | |
| • | changes in government laws and regulation; and | |
| • | geopolitical conditions such as acts or threats of terrorism or military conflicts. |
General market fluctuations, industry factors, and general
economic and political conditions and events, such as economic
slowdowns or recessions, interest rate changes or credit loss
trends, could also cause our stock price to decrease, regardless
of operating results.
Our
common stock trading volume is less than that of other larger
financial services companies.
Although our common stock is listed for trading on the NASDAQ
Global Select Market, the trading volume in our common stock is
less than that of larger financial services companies. A public
trading market having the desired characteristics of depth,
liquidity, and orderliness depends on the presence in the
marketplace of willing buyers and sellers of our common stock at
any given time. This presence depends on the individual
decisions of investors and general economic and market
conditions over which we have no control. Given the lower
trading volume of our common stock, significant sales of our
common stock, or the expectation of these sales, could cause our
stock price to fall.
The
exercise of the warrant held by the Treasury would dilute
existing shareholders’ ownership interest and may make it
more difficult for us to take certain actions that may be in the
best interest of shareholders.
In addition to the issuance of the preferred shares, we also
granted to the Treasury a warrant to purchase
2,266,458 shares of common stock at a price of $3.19 per
share. If the Treasury exercises the entire warrant, it would
result in a significant dilution to the ownership interest of
our existing shareholders and dilute the earnings per share
value of our common stock. Further, if the Treasury exercises
the entire warrant, it will become the second largest
shareholder of Fidelity. The Treasury has agreed that it will
not exercise voting power with regard to the shares that it
acquires by exercising the warrant. However, Treasury’s
abstention from voting may make it more difficult for us to
obtain shareholder approval for those matters that require a
majority of total shares outstanding, such as a business
combination involving Fidelity.
We may
issue additional shares of common stock or equity derivative
securities that will dilute the percentage ownership interest of
existing shareholders and may dilute the book value per share of
our common stock and adversely affect the terms on which we may
obtain additional capital.
Our authorized capital includes 50,000,000 shares of common
stock. At May 24, 2010, we had 10,595,798 shares of
common stock outstanding and had outstanding stock options to
purchase an aggregate of 494,405 shares of common stock, of
which 255,699 shares were vested with a weighted average
exercise price of $12.11 per share. We had an additional
152,571 shares reserved for issuance under our 2006 Equity
Incentive Plan pursuant to which we may grant additional stock
options or issue shares of restricted stock. Subject to
applicable NASDAQ rules, our board of directors generally has
the authority, without action by or vote of the shareholders, to
issue all or part of any authorized but unissued shares of
common stock for any corporate purpose, including issuance of
equity-based incentives under or outside of our equity
compensation plans. We may seek additional equity capital in the
future as we develop our business and expand our operations. Any
issuance of additional shares of common stock or equity
derivative securities will dilute the percentage ownership
interest of our shareholders and may dilute the book value per
share of our common stock. Shares we issue in connection with
this offering will increase the total number of outstanding
shares and dilute the percentage ownership interest of our
existing shareholders.
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Because
our management will have broad discretion over the use of the
net proceeds from the offering, you may not agree with how we
use the proceeds, and we may not invest the proceeds
successfully.
We intend to use the proceeds of this offering to execute our
strategic initiatives, including pursuing FDIC-assisted or other
acquisitions of financial institutions, providing capital for
organic growth, and for general corporate purposes. When
appropriate, we may use some of the proceeds to redeem all or
some of the preferred shares and warrant held by Treasury,
subject to final approval by the Treasury and our federal
banking regulator. Our management may allocate the proceeds
among these purposes as it deems appropriate. Accordingly, you
will be relying on the judgment of our management with regard to
the use of the proceeds from this offering, and you will not
have the opportunity, as part of your investment decision, to
assess whether we are using the proceeds appropriately. It is
possible that we may invest the proceeds in a way that does not
yield a favorable, or any, return for us or the investor.
Our
ability to pay dividends on and repurchase our common stock is
restricted.
Future dividends will require a quarterly review of current and
projected earnings for the remainder of 2010 in relation to
capital requirements prior to the determination of the dividend,
and be subject to regulatory restrictions under applicable law
and the requirements of the memorandums of understanding. The
memorandums of understanding require that, prior to declaring or
paying any cash dividends, we must obtain the prior consent of
our regulators. Even if we decide to pay cash dividends in the
future and our regulators permit us to do so, our ability to do
so will be limited by the regulatory restrictions described in
the following sentence, by the Bank’s ability to pay cash
dividends to us based on its capital position and profitability,
and by our need to maintain sufficient capital to support the
Bank’s operations. The ability of the Bank to pay cash
dividends to us is limited by its obligations to maintain
sufficient capital and by other restrictions on its cash
dividends that are applicable to Georgia state banks and banks
that are regulated by the FDIC. If we do not satisfy these
regulatory requirements, we will be unable to pay cash dividends
on our common stock.
At March 31, 2010, we had $67.5 million in face amount
of outstanding trust preferred securities. We believe that we
have sufficient reserves at Fidelity Southern to meet our
payment obligations under the trust preferred securities during
the next 12 months. An inability of the Bank to pay cash
dividends to us could affect our future ability to make interest
payments on our trust preferred securities. In the event we were
to default in payments due with respect to the trust preferred
securities or otherwise defer payments under the terms of the
trust preferred agreements, we would be prohibited from
declaring or paying dividends on our common stock.
These restrictions, together with the potentially dilutive
impact of the warrant discussed in the “Description of
Capital Stock” section, could have a negative effect on the
value of our common stock.
An
investment in our common stock is not an insured
deposit.
Our common stock is not a bank deposit and, therefore, is not
insured against loss by the FDIC, any other deposit insurance
fund or by any other public or private entity. Investment in our
common stock is inherently risky for the reasons described in
this “Risk Factors” section and elsewhere in this
prospectus supplement and is subject to the same market forces
that affect the price of common stock in any company. As a
result, if you acquire our common stock, you may lose some or
all of your investment.
The
common stock is equity and, therefore, is subordinate to our and
our subsidiaries’ indebtedness and any preferred stock,
including the Series A Preferred Stock.
Shares of our common stock represent equity interests in the
Company and do not constitute indebtedness. As such, shares of
our common stock will rank junior to all current and future
indebtedness and other non-equity claims on us with respect to
assets available to satisfy claims on us, including in a
liquidation of our company. We may incur additional indebtedness
from time to time and may increase our aggregate level of
outstanding indebtedness.
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Additionally, holders of our common stock are subject to the
prior dividend and liquidation rights of any holders of our
preferred stock then outstanding. Our board of directors is
authorized to cause us to issue preferred stock, in one or more
series, without any action on the part of our shareholders. If
we issue shares of preferred stock that have a preference over
our common stock with respect to the payment of dividends or
upon liquidation, or if we issue shares of preferred stock with
voting rights that dilute the voting power of our common stock,
then the rights of holders of our common stock or the market
price of our common stock could be adversely affected.
The dividends payable on the Series A Preferred Stock are
cumulative, and the liquidation amount of the Series A
Preferred Stock is $1,000 per share. In the event of our
bankruptcy, dissolution or liquidation, the holders of the
Series A Preferred Stock will receive distributions of our
available assets prior to the holders of our common stock.
USE OF
PROCEEDS
We estimate that the net proceeds to us from the sale of our
common stock in this offering, at an assumed public offering
price of $ per share (based on the
five trading day average of the reported closing sale prices of
our common stock on the NASDAQ Global Select Market
through ,
2010), after deducting the underwriting discount and our
estimated offering expenses, will be approximately
$ million. If the
underwriters exercise their over-allotment option in full, we
estimate that our net proceeds will be approximately
$ million. We intend to use
the proceeds of this offering to execute our strategic
initiatives, including pursuing FDIC-assisted and other
acquisitions of financial institutions as opportunities arise,
providing capital for organic growth, and for general corporate
purposes. When appropriate, we may use some of the proceeds to
redeem all or some of the preferred shares and warrant held by
Treasury, subject to final approval by the Treasury and our
federal banking regulator.
Our management will retain broad discretion in deciding how to
allocate the net proceeds of this offering. Until we designate
the use of the net proceeds, we will invest them temporarily in
liquid short-term securities. The precise amounts and timing of
our use of the net proceeds will depend upon market conditions
and the availability of other funds, among other factors.
CAPITALIZATION
The following table shows our capitalization as of
March 31, 2010. Our capitalization is presented on a
historical basis and on an as-adjusted basis to give effect to
the sale of shares in this
offering, as if the offering had been completed as of
March 31, 2010 and assuming:
| • | the net proceeds of the offering are approximately $ million, after deducting the estimated underwriting discount of $ million and estimated offering expenses of approximately $ ; | |
| • | the underwriters’ over-allotment option is not exercised; and | |
| • | a public offering price of $ per share. |
The following data should be read together with our consolidated
financial statements and the related notes included in our
Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2010 and Annual
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Report on
Form 10-K
for the year ended December 31, 2009 which are incorporated
by reference into this prospectus.
| March 31, 2010 | ||||||||
| Actual | As Adjusted | |||||||
| (Dollars in thousands) | ||||||||
|
Long-Term Indebtedness:
|
||||||||
|
Junior subordinated debentures(1)
|
$ | 67,527 | $ | 67,527 | ||||
|
FHLB Advances
|
50,000 | 50,000 | ||||||
|
Shareholders’ Equity:(2)
|
||||||||
|
Preferred stock, no par value. Authorized 10,000,000;
48,200 shares issued and outstanding, net of discount
|
44,916 | 44,916 | (3) | |||||
|
Common stock, no par value. Authorized 50,000,000; issued and
outstanding 10,403,013; 16,619,229 issued and outstanding, as
adjusted
|
54,457 | 108,632 | ||||||
|
Accumulated other comprehensive income, net of taxes
|
318 | 318 | ||||||
|
Retained earnings
|
31,083 | 31,083 | ||||||
|
Total shareholders’ equity
|
130,774 | 184,949 | ||||||
|
Total capitalization(4)
|
$ | 248,301 | $ | 302,476 | ||||
|
Capital Ratios:
|
||||||||
|
Equity to assets ratio (average equity to average assets)
|
7.01 | % | 9.94 | % | ||||
|
Leverage ratio
|
9.11 | % | 13.02 | % | ||||
|
Tier 1 risk-based capital ratio
|
11.34 | % | 16.20 | % | ||||
|
Total risk-based capital ratio
|
14.08 | % | 17.72 | % | ||||
| (1) | Subordinated debentures associated with outstanding trust preferred securities. | |
| (2) | As of May 24, 2010, we had 10,595,798 shares of common stock outstanding and had outstanding stock options to purchase an aggregate of 494,405 shares of common stock, of which 255,699 shares were vested with a weighted average exercise price of $12.11 per share. We had an additional 152,571 shares reserved for issuance under our 2006 Equity Incentive Plan pursuant to which we may grant additional stock options or issue shares of restricted stock. | |
| (3) | Assumes all of the outstanding shares of preferred stock issued to Treasury pursuant to its capital purchase program remain outstanding. | |
| (4) | Includes long-term indebtedness and total shareholders’ equity. |
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MARKET
FOR OUR COMMON STOCK
Our common stock is listed on the NASDAQ Global Select Market
under the symbol “LION.” As of May 24, 2010, we
had 10,595,798 shares of common stock outstanding and
approximately 858 shareholders of record. The last reported
sales price of our common stock on May , 2010
was $ per share.
The following table shows the reported high and low closing
prices for shares of our common stock published by NASDAQ
beginning with the first quarter of 2008.
| High | Low | |||||||
|
2010
|
||||||||
|
Second Quarter (through May , 2010)
|
$ | — | $ | — | ||||
|
First Quarter
|
5.79 | 3.29 | ||||||
|
2009
|
||||||||
|
Fourth Quarter
|
$ | 4.63 | $ | 2.47 | ||||
|
Third Quarter
|
3.25 | 2.55 | ||||||
|
Second Quarter
|
3.17 | 2.21 | ||||||
|
First Quarter
|
4.16 | 1.09 | ||||||
|
2008
|
||||||||
|
Fourth Quarter
|
$ | 4.55 | $ | 1.75 | ||||
|
Third Quarter
|
5.22 | 3.26 | ||||||
|
Second Quarter
|
8.11 | 4.15 | ||||||
|
First Quarter
|
9.17 | 7.13 | ||||||
DIVIDEND
POLICY
Generally, dividends that may be paid by the Company or the Bank
to us are subject to certain regulatory limitations. In
particular, under the Georgia corporate code, we are prohibited
from declaring or paying dividends in excess of net earnings or
in a manner in which increases our debt. Under Georgia banking
law applicable to Georgia state chartered commercial banks such
as the Bank, the approval of the Georgia Department of Banking
and Finance will be required if the total of all dividends
declared in any calendar year by the Bank exceeds 50.0% of the
Bank’s net profits for the prior year or if certain other
provisions relating to classified assets and capital adequacy
are not met. Based on this rule, at December 31, 2009 and
2008, the Bank could not pay any dividends without regulatory
approval.
We declared approximately $1.8 million and
$3.4 million in cash dividends on common stock in 2008 and
2007, respectively. We did not declare any cash dividends in
2009. However, for each quarter of 2009 and in January and April
of 2010, we declared a quarterly stock dividend of one share for
every 200 shares owned as of each quarterly record date.
Management cannot assure that this trend will continue. Future
dividends will require a quarterly review of current and
projected earnings for the remainder of 2010 in relation to
capital requirements prior to the determination of the dividend,
and be subject to regulatory restrictions under applicable law
and the requirements of the memorandums of understanding we have
entered into with our regulators.
The memorandums of understanding require that, prior to
declaring or paying any cash dividends, we must obtain the prior
consent of our regulators. In addition, pursuant to the terms of
the agreement entered into with the Treasury under the Capital
Purchase Program, our ability to declare or pay dividends or
distributions of its common stock is subject to restrictions,
including a restriction against increasing dividends from the
last quarterly cash dividend per share ($0.01) declared on the
common stock prior to December 19, 2008, as adjusted for
subsequent stock dividends and other similar actions. In
addition, as long as the preferred shares are outstanding,
dividend payments are prohibited until all accrued and unpaid
dividends are paid on such preferred stock, subject to certain
limited exceptions. This restriction will terminate on the third
anniversary of the date of issuance of the preferred shares or,
if earlier, the date on which the preferred shares
22
Table of Contents
have been redeemed in whole or the Treasury has transferred all
of the preferred shares to third parties. In the event we were
to default in payments due with respect to the trust preferred
securities or otherwise defer payments under the terms of the
trust preferred agreements, we would also be prohibited from
declaring or paying dividends.
The following schedule summarizes cash dividends we declared and
paid per share of common stock:
| Dividends | ||||||||||||
| 2010 | 2009 | 2008 | ||||||||||
|
First Quarter
|
$ | — | $ | — | $ | .09 | ||||||
|
Second Quarter
|
— | (1) | — | .09 | ||||||||
|
Third Quarter
|
N/A | — | .01 | |||||||||
|
Fourth Quarter
|
N/A | — | — | |||||||||
|
For the Year
|
$ | — | $ | — | $ | .19 | ||||||
| (1) | Through May , 2010 |
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The first table set forth immediately below reflects the number
of shares of common stock that to our knowledge were
beneficially owned as of May 24, 2010, by each person known
to be the beneficial owner of more than five percent of the
common stock of Fidelity. The second table set forth immediately
below reflects the number of shares of common stock beneficially
owned as of May 24, 2010 by (1) each director,
(2) each executive officer named in the summary
compensation table in our proxy statement for our 2010 annual
meeting, as required under Item 402(a)(3) of
Regulation S-K,
and (3) all directors and executive officers as a group.
Unless otherwise indicated, each of the named individuals and
each member of the group has sole or shared voting power or
investment power with respect to the shares shown. Unless
otherwise indicated, the address of each person or entity named
in the table is
c/o Fidelity
Southern Corporation, 3490 Piedmont Road NE, Suite 1550,
Atlanta, Georgia 30305.
The number of shares beneficially owned by each shareholder is
determined under rules promulgated by the Securities and
Exchange Commission. The information is not necessarily
indicative of beneficial ownership for any other purpose. Under
these rules, beneficial ownership includes any shares as to
which the individual has sole or shared voting power or
investment power and any shares as to which the individual has
the right to acquire beneficial ownership within 60 days of
May 24, 2010, through the exercise of any stock option,
warrant, or other right. The inclusion in the following table of
those shares, however, does not constitute an admission that the
named shareholder is a direct or indirect beneficial owner of
those shares.
Security
Ownership of Certain Beneficial Owners
|
Amount and Nature of |
||||||||
|
Name of Beneficial Owner
|
Beneficial Ownership | Percent of Class | ||||||
|
Sagus Partners LLC
|
962,443 | 9.08 | % | |||||
|
3399 Peachtree Road #2040
|
||||||||
|
Atlanta, GA 30326
|
||||||||
|
Tontine Partners, LP
|
626,678 | 5.91 | % | |||||
|
55 Railroad Avenue,
3rd Floor
|
||||||||
|
Greenwich, CT
06830-6378
|
||||||||
|
Marshall & Ilsley Trust Co. N.A., as Trustee for
the Fidelity Southern Corporation 401(k) Plan
|
551,681 | (1) | 5.21 | % | ||||
|
111 East Kilbourn Avenue, Suite 200
|
||||||||
|
Milwaukee, WI
53202-6672
|
||||||||
23
Table of Contents
Security
Ownership of Management
|
Amount and Nature of |
||||||||
|
Name of Beneficial Owner
|
Beneficial Ownership | Percent of Class | ||||||
|
James B. Miller, Jr.
|
3,143,699 | (2) | 29.53 | % | ||||
|
Major General (Ret) David R. Bockel
|
21,867 | (3) | * | |||||
|
Edward G. Bowen, M.D.
|
27,295 | (4) | * | |||||
|
Millard Choate
|
191,150 | (5) | 1.80 | % | ||||
|
Dr. Donald A. Harp, Jr.
|
10,960 | * | ||||||
|
Kevin S. King
|
16,338 | (6) | * | |||||
|
William C. Lankford, Jr.
|
1,101 | * | ||||||
|
H. Palmer Proctor, Jr.
|
180,827 | (7) | 1.69 | % | ||||
|
W. Clyde Shepherd III
|
102.538 | (8) | * | |||||
|
Rankin M. Smith, Jr.
|
221,026 | (9) | 2.09 | % | ||||
|
Stephen H. Brolly
|
42,253 | (10) | * | |||||
|
David Buchanan
|
117,583 | (11) | 1.11 | % | ||||
|
All directors and executive officers as a group (12 persons)
|
4,076,637 | (12) | 37.85 | % | ||||
| * | Less than 1%. |
| (1) | The named executive officers have the authority to vote the shares of the 401(k) Plan. | |
| (2) | Includes 50,000 shares that Mr. Miller has the right to acquire pursuant to outstanding stock options, 352,351 shares held by Mr. Miller’s children, grandchildren, and family trust, and 196,693 shares held by Berlin American, LLC and Berlin American Company II, LLC, companies of which Mr. Miller and his wife’s estate own 40%. Also includes 92,405 shares owned by his wife’s estate. | |
| (3) | Includes 667 shares that Major General (Ret) Bockel has the right to acquire pursuant to outstanding stock options, and 272 shares held by Major General (Ret) Bockel’s wife. | |
| (4) | Includes 667 shares that Dr. Bowen has the right to acquire pursuant to outstanding stock options, and 10,932 shares held by Dr. Bowen as trustee for Target Benefit Plan. | |
| (5) | Includes 61,974 shares owned by a family partnership. | |
| (6) | Includes 667 shares that Mr. King has the right to acquire pursuant to outstanding stock options, and 4,548 shares held by Mr. King’s wife. | |
| (7) | Includes 75,000 shares that Mr. Proctor has the right to acquire pursuant to outstanding stock options, 1,995 shares held by Mr. Proctor’s children, and 5,357 shares held by Mr. Proctor’s wife. | |
| (8) | Includes 667 shares that Mr. Shepherd has the right to acquire pursuant to outstanding stock options, and 35,754 shares held by a Shepherd family trust and 5,175 shares held by a family partnership. | |
| (9) | Includes 667 shares that Mr. Smith has the right to acquire pursuant to outstanding stock options, and 304 shares owned by Mr. Smith’s wife. | |
| (10) | Includes 8,333 shares that Mr. Brolly has the right to acquire pursuant to outstanding stock options. | |
| (11) | Includes 38,333 shares that Mr. Buchanan has the right to acquire pursuant to outstanding stock options. | |
| (12) | Includes 175,001 shares that the beneficial owners have the right to acquire pursuant to outstanding stock options. |
24
Table of Contents
DESCRIPTION
OF CAPITAL STOCK
General
Our authorized capital stock consists of 50,000,000 shares
of common stock, no par value, and 10,000,000 shares of
undesignated preferred stock, no par value. As of May 24,
2010, there were 10,595,798 shares of common stock
outstanding and 48,200 shares of our Series A
Preferred Stock outstanding.
Common
Stock
Holders of common stock are entitled to cast one vote for each
share held of record, to receive such dividends as may be
declared by the board of directors out of legally available
funds, and, subject to the rights of any class of stock having
preference to the common stock, to share ratably in any
distribution of our assets after payment of all debts and other
liabilities upon liquidation, dissolution or winding up.
Shareholders do not have cumulative voting rights or preemptive
rights or other rights to subscribe for additional shares, and
the common stock is not subject to conversion or redemption.
The memorandums of understanding, to which we are subject,
require that, prior to declaring or paying any cash dividends,
we must obtain the prior consent of our regulators. Pursuant to
the terms of the agreement we have entered into with Treasury,
our ability to declare or pay dividends or distributions on, or
purchase, redeem or otherwise acquire for consideration, shares
of our common stock is subject to restrictions, including a
restriction against increasing dividends on the common stock
above $0.01 per share. These restrictions will terminate on the
earlier of (a) the third anniversary of the date of
issuance of the preferred shares and (b) the date on which
all of the preferred shares have been redeemed or Treasury has
transferred all of the preferred shares to third parties. In
addition, our ability to declare or pay dividends or
distributions on, or repurchase, redeem or otherwise acquire for
consideration, shares of our common stock is subject to
restrictions in the event that we fail to declare and pay full
dividends (or declare and set aside a sum sufficient for payment
thereof) on the preferred shares.
Our common stock is listed on the NASDAQ Global Select Market
under the symbol “LION.”
Preferred
Stock and the Warrant
Our board of directors may, from time to time, by action of a
majority, issue shares of the authorized, undesignated preferred
stock, in one or more classes or series. In connection with any
such issuance, the board of directors may by resolution
determine the designation, voting rights, preferences as to
dividends, in liquidation or otherwise, participation,
redemption, sinking fund, conversion, dividend or other special
rights or powers, and the limitations, qualifications and
restrictions of such shares of preferred stock.
As of the date hereof, the board of directors has created one
series of preferred stock, the Series A Preferred Stock,
which was issued to the Treasury. The Series A Preferred
Stock consists of 48,200 shares having a liquidation amount
per share equal to $1,000. The Series A Preferred Stock
pays cumulative dividends at a rate of 5.0% per year for the
first five years and thereafter at a rate of 9.0% per year,
prior to the payment of dividends on any shares of our common
stock. Subject to the approval of our banking regulators, we may
utilize some or all of the proceeds of this offering, at our
option, to redeem the Series A Preferred Stock at the
liquidation amount plus accrued and unpaid dividends.
The Series A Preferred Stock is non-voting, except in
limited circumstances. Prior to the third anniversary of
issuance, unless we have redeemed all of the Series A
Preferred Stock or the Treasury has transferred all of the
Series A Preferred Stock to a third party, the consent of
the Treasury will be required for us to increase its common
stock dividend or repurchase its common stock or other equity or
capital securities, other than in connection with benefit plans
consistent with past practice and certain other circumstances
specified in the Purchase Agreement. In the event that we do not
pay dividends on the Series A Preferred Stock for six
dividend periods, whether or not consecutive, the size of our
board of directors will automatically be increased by two and
the holders of the Series A Preferred Stock shall have the
right to elect two directors to fill such
25
Table of Contents
newly created directorships at the next annual meeting and at
each subsequent annual meeting until all accrued and unpaid
dividends for all past dividend periods, including the latest
completed dividend period, on all outstanding shares of
Series A Preferred Stock have been declared and paid in
full. The foregoing description of the Series A Preferred
Stock is qualified in its entirety by reference to the Articles
of Amendment to the Articles of Incorporation designating such
series.
We have also issued a warrant to the Treasury to purchase up to
2,266,458 shares of our common stock at an exercise price
of $3.19 per share, for an aggregate purchase price of
$48.2 million in cash. The shares of common stock issuable
upon exercise of the warrant in accordance with its terms will
be fully paid, validly issued and nonassessable.
Anti-takeover
Effects
The provisions of our Articles of Incorporation and by-laws
summarized in the following paragraphs may have anti-takeover
effects and may delay, defer or prevent a tender offer or
takeover attempt that a shareholder might consider to be in the
shareholder’s best interest, including those attempts that
might result in a premium over the market price for the shares
held by shareholders, and may make removal of management more
difficult. Applicable federal and state laws may also restrict
such tender offers or takeovers.
Board
Discretion to Oppose Tender Offer
Our Articles of Incorporation provide that the board of
directors may, if it deems advisable, oppose a tender or other
offer, and take any lawful action to accomplish its purpose. In
considering whether to oppose a tender offer, the board may, but
is not legally obligated to consider any pertinent issues, and
may determine, consistent with its fiduciary duties, to take
action such as advising shareholders not to accept an offer,
litigation against the offeror, filing complaints with
governmental and regulatory authorities, acquiring our
securities, selling or otherwise issuing authorized but unissued
securities or granting options, acquiring another company, and
soliciting an offer from another person.
Supermajority
Required for Certain Transactions
Our Articles of Incorporation require that any merger,
liquidation or dissolution of Fidelity Southern, or any action
that would result in the same, or other disposition of all or
substantially all of our assets (other than certain security or
pledging arrangements), requires approval by affirmative vote of
the holders of at least sixty-six and two-thirds percent
(662/3%)
of the issued and outstanding shares then entitled to vote on
such matters.
Authorized
but Unissued Stock
The authorized but unissued shares of common stock and preferred
stock will be available or future issuance without shareholder
approval, subject to applicable NASDAQ rules. These additional
shares may be used for a variety of corporate purposes,
including future public offerings to raise additional capital,
corporate acquisitions and employee benefit plans. The existence
of authorized but unissued and unreserved shares of common stock
and preferred stock may enable our board of directors to issue
shares to persons aligned with current management, which could
render more difficult or discourage any attempt to obtain
control of our company by means of a proxy contest, tender
offer, merger or otherwise, and thereby protect the continuity
of our management.
Number
of Directors
Our by-laws provide that, generally, the number of directors may
not consist of fewer than three or more than 24 members. Our
shareholders fix the number of directors at each annual meeting;
provided that the shareholders may, by affirmative vote of the
holders of a majority of the shares entitled to vote in an
election of directors, increase or decrease the number of
directors and add or remove directors with or without cause at
any time. Our board of directors may, by its action, increase
the number of directors by two and elect directors to fill those
vacancies, so long as the total number of directors does not
exceed 24.
26
Table of Contents
Shares Eligible
for Future Sale
Upon completion of this offering, we will
have shares of common stock
outstanding, or shares if the
underwriters exercise their over-allotment option in full. The
shares sold in this offering will be freely tradable, without
restriction or registration under the Securities Act of 1933,
except for shares purchased by our “affiliates,” which
will be subject to resale restrictions under the Securities Act
of 1933. An affiliate of the issuer is defined in Rule 144
under the Securities Act of 1933 as a person that directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with the issuer.
Rule 405 under the Securities Act of 1933 defines the term
“control” to mean the possession, direct or indirect,
of the power to direct or cause the direction of the management
and policies of the person whether through the ownership of
voting securities, by contract, or otherwise. Directors and
executive officers will generally be deemed to be affiliates.
Shares held by affiliates may be sold without registration in
accordance with the provisions of Rule 144 or another
exemption from registration.
In general, under Rule 144, an affiliate or a person
holding restricted shares may sell, within any three-month
period, a number of shares no greater than 1.0% of the then
outstanding shares of the common stock or the average weekly
trading volume of the common stock during the four calendar
weeks preceding the sale, whichever is greater. Rule 144
also requires that the securities must be sold in
“brokers’ transactions,” as defined in the
Securities Act of 1933, and the person selling the securities
may not solicit orders or make any payment in connection with
the offer or sale of securities to any person other than the
broker who executes the order to sell the securities. This
requirement may make the sale of our common stock by affiliates
under Rule 144 difficult. Rule 144 also requires
persons holding restricted securities to hold the shares for at
least six months before sale.
Transfer
Agent
The transfer agent for our common stock is BNY Mellon Shareowner
Services, 480 Washington Boulevard, 27th Floor, Jersey City, NJ
07310-1900.
27
Table of Contents
UNDERWRITING
We are offering the shares of common stock described in this
prospectus through Sandler O’Neill & Partners,
L.P., as the representative of the underwriters. We have entered
into an underwriting agreement with the underwriters,
dated , 2010. Subject to the terms
and conditions of the underwriting agreement, we have agreed to
sell to the underwriters, and each underwriter has severally
agreed to purchase, at the public offering price less the
underwriting discounts and commissions set forth on the cover
page of this prospectus, the number of shares of common stock
listed next to its name in the following table:
|
Underwriter
|
Number of Shares | |||
|
Sandler O’Neill & Partners, L.P.
|
||||
|
FIG Partners, LLC
|
||||
|
Total
|
||||
The underwriters are committed to purchase and pay for all such
shares of common stock, if any are purchased. The underwriting
agreement also provides that if an underwriter defaults, the
purchase commitments of non-defaulting underwriters may also be
increased or the offering may be terminated.
We have granted to the underwriters an option, exercisable no
later than 30 days after the date of the underwriting
agreement, to purchase up
to additional shares of
common stock at the public offering price less the underwriting
discount set forth on the cover page of this prospectus. The
underwriters may exercise this option only to cover
over-allotments, if any, made in connection with this offering.
To the extent the option is exercised and the conditions of the
underwriting agreement are satisfied, we will be obligated to
sell to the underwriters, and the underwriters will be obligated
to purchase, these additional shares of common stock.
The underwriters propose to offer the shares of common stock
directly to the public at the offering price set forth on the
cover page of this prospectus and to certain securities dealers
at the public offering price, less a concession not in excess of
$ per share. The underwriters may
allow, and these dealers may re-allow, a concession not in
excess of $ per share on sales to
other dealers. After the public offering of the common stock,
the underwriters may change the offering price and other selling
terms.
The following table shows the per share and total underwriting
discount that we will pay to the underwriters and the proceeds
we will receive before expenses. These amounts are shown
assuming both no exercise and full exercise of the
underwriters’ over-allotment option to purchase additional
shares.
|
Total |
Total |
|||||||||||
|
Without |
With |
|||||||||||
| Per Share | Over-Allotment | Over-Allotment | ||||||||||
|
Price to public
|
$ | $ | $ | |||||||||
|
Underwriting discount(1)
|
||||||||||||
|
Proceeds to us, before expenses
|
||||||||||||
| (1) | The underwriting discount is $ per share, except with respect to shares sold to our officers, directors and employees for which the underwriting discount is $ per share. |
We estimate that the total expenses of the offering, including
registration, filing and listing fees, printing fees and legal
and accounting expenses, but excluding underwriting discounts
and commissions, will be approximately $450,000 and are payable
by us. We have agreed to reimburse the underwriters for their
actual
out-of-pocket
expenses incurred in connection with the offering, including
certain fees and disbursements of underwriters’ counsel,
subject to a cap.
The shares of common stock are being offered by the
underwriters, subject to prior sale, when, as and if issued to
and accepted by them, subject to approval of certain legal
matters by counsel for the underwriters and other conditions
specified in the underwriting agreement. The underwriters
reserve the right to withdraw, cancel or modify this offer and
to reject orders in whole or in part.
28
Table of Contents
The underwriting agreement provides that the obligations of the
underwriters are conditional and may be terminated at their
discretion based on their assessment of the state of the
financial markets. The obligations of the underwriters may also
be terminated upon the occurrence of the events specified in the
underwriting agreement. The underwriting agreement provides that
the underwriters are obligated to purchase all the shares of
common stock in this offering if any are purchased, other than
those shares covered by the over-allotment option described
above.
Lock-up
Agreement. We, and each of our executive officers
and directors, have agreed, for the period beginning on and
including the date of the underwriting agreement through and
including the date that is 90 days after the date of the
underwriting agreement, not to sell, offer, agree to sell,
contract to sell, hypothecate, pledge, grant any option to
purchase, make any short sale, or otherwise dispose of or hedge,
directly or indirectly, any shares of our common stock, or any
or securities convertible into, repayable with, exchangeable or
exercisable for, or that represent the right to receive any
shares of our common stock or any of our securities that are
substantially similar to our common stock, without, in each
case, the prior written consent of Sandler
O’Neill & Partners, L.P. These restrictions are
expressly agreed to preclude us, and our executive officers and
directors, from engaging in any hedging or other transaction or
arrangement that is designed to, or which reasonably could be
expected to, lead to or result in a sale, disposition or
transfer, in whole or in part, of any of the economic
consequences of ownership of our common stock, whether such
transaction would be settled by delivery of our common stock or
other securities, in cash or otherwise. The
90-day
restricted period will be automatically extended if
(1) during the period that begins on the date that is
15 calendar days plus three (3) business days before
the last day of the
90-day
restricted period and ends on the last day of the 90-day
restricted period, we issue an earnings release or material news
or a material event relating to us occurs, or (2) prior to
the expiration of the
90-day
restricted period, we announce that we will release earnings
results or become aware that material news or a material event
relating to us will occur during the
16-day-period
beginning on the last day of the
90-day
restricted period, in which case the restrictions described
above will continue to apply until the expiration of the date
that is 15 calendar days plus three (3) business days
after the date on which the earnings release is issued or the
material news or event occurs.
The restrictions described in the preceding paragraph will not
apply to (1) the issuance by us of common stock to the
underwriters pursuant to the underwriting agreement;
(2) the issuance by us of options to purchase common stock
or restricted shares of common stock pursuant to the terms of
our equity incentive plans described in this prospectus,
(3) common stock pledged by any of our officers or
directors in a bona fide transaction outstanding as of the date
of the prospectus to a lender, as disclosed in writing to the
underwriter, (4) pursuant to the exercise of stock options
that have been granted by the Company pursuant to the equity
incentive plans described in this prospectus; provided that any
shares of common stock issued to an executive officer or
director, individually or as fiduciary, shall be held in
accordance with the terms of the
lock-up
agreement; (5) a bona fide gift or gifts by any of our
officers or directors, provided that the donee or donees thereof
agree to be bound in writing by the restrictions described in
the preceding paragraph; (6) a transfer by any of our
officers or directors to any trust for the direct or indirect
benefit of that officer or director or his or her immediate
family, provided that the trustee of the trust agrees to be
bound in writing by such restrictions and provided further that
any such transfer shall not involve a disposition for value; or
(7) shares issued pursuant to our direct stock purchase and
dividend reinvestment plan. For purposes of this paragraph,
“immediate family” shall mean any relationship by
blood, marriage or adoption not more remote than first cousin.
The underwriters may, in their sole discretion and at any time
and from time to time, without notice, release all or any
portion of the foregoing shares and other securities from the
foregoing restrictions.
Indemnity. We and the Bank have agreed to
jointly and severally indemnify the underwriters and persons who
control the underwriters against certain liabilities, including
liabilities under the Securities Act of 1933, and to contribute
to payments that the underwriters may be required to make in
respect of these liabilities.
Stabilization. In connection with this
offering, the underwriters may engage in stabilizing
transactions, over-allotment transactions and syndicate covering
transactions.
29
Table of Contents
Stabilizing transactions permit bids to purchase shares of
common stock so long as the stabilizing bids do not exceed a
specified maximum, and are engaged in for the purpose of
preventing or retarding a decline in the market price of the
common stock while the offering is in progress.
Over-allotment transactions involve sales by the underwriters of
shares of common stock in excess of the number of shares the
underwriters are obligated to purchase. This creates a syndicate
short position which may be either a covered short position or a
naked short position. In a covered short position, the number of
shares of common stock over-allotted by the underwriters is not
greater than the number of shares that they may purchase in the
over-allotment option. In a naked short position, the number of
shares involved is greater than the number of shares in the
over-allotment option. The underwriters may close out any short
position by exercising their over-allotment option
and/or
purchasing shares in the open market.
Syndicate covering transactions involve purchases of common
stock in the open market after the distribution has been
completed in order to cover syndicate short positions. In
determining the source of shares to close out the short
position, the underwriters will consider, among other things,
the price of shares available for purchase in the open market as
compared with the price at which they may purchase shares
through exercise of the over-allotment option. If the
underwriters sell more shares than could be covered by exercise
of the over-allotment option and, therefore, have a naked short
position, the position can be closed out only by buying shares
in the open market. A naked short position is more likely to be
created if the underwriters are concerned that after pricing,
there could be downward pressure on the price of the shares in
the open market that could adversely affect investors who
purchase in the offering.
These stabilizing transactions and syndicate covering
transactions may have the effect of raising or maintaining the
market price of our common stock or preventing or retarding a
decline in the market price of our common stock. As a result,
the price of our common stock in the open market may be higher
than it would otherwise be in the absence of these transactions.
Neither we nor the underwriters makes any representation or
prediction as to the effect that the transactions described
above may have on the price of our common stock. These
transactions may be effected on the NASDAQ Global Select Market
or otherwise and, if commenced, may be discontinued at any time.
Passive Market Making. In connection with the
offering, the underwriter and selected dealers, if any, who are
qualified market makers on the NASDAQ Global Select Market, may
engage in passive market making transactions in our common stock
on the NASDAQ Global Select Market in accordance with
Rule 103 of Regulation M under the Securities Act.
Rule 103 permits passive market making activity by
participants in our common stock offering. Passive market making
may occur before the pricing of our offering, or before the
commencement of offers or sales of our common stock. Each
passive market maker must comply with applicable volume and
price limitations and must be identified as a passive market
maker. In general, a passive market maker must display its bid
at a price not in excess of the highest independent bid of the
security. If all independent bids are lowered below the bid of
the passive market maker, however, the bid must then be lowered
when purchase limits are exceeded. Net purchases by a passive
market maker on each day are limited to a specified percentage
of the passive market maker’s daily average trading volume
in the common stock during a specified period and must be
discontinued when that limit is reached. The underwriters and
other dealers are not required to engage in passive market
making and may end passive market making at any time.
Other. From time to time, the underwriters
have provided, and may continue to provide, investment banking
services to us in the ordinary course of their businesses, and
have received, and may continue to receive, compensation for
such services.
LEGAL
MATTERS
The validity of the issuance of the shares of common stock
offered hereby will be passed upon for us by Baker, Donelson,
Bearman, Caldwell & Berkowitz, PC. Certain legal
matters relating to the sale of the common stock offered hereby
will be passed upon for the underwriters by Kilpatrick Stockton
LLP.
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EXPERTS
The consolidated financial statements of Fidelity Southern
Corporation appearing in Fidelity Southern Corporation’s
Annual Report
(Form 10-K)
for the year ended December 31, 2009, and the effectiveness
of Fidelity Southern Corporation’s internal control over
financial reporting as of December 31, 2009 have been
audited by Ernst & Young LLP, independent registered
public accounting firm, as set forth in their reports thereon,
included therein, and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by
reference in reliance upon such reports given on the authority
of such firm as experts in accounting and auditing.
INCORPORATION
BY REFERENCE
The SEC allows us to “incorporate by reference” the
information we file with it, which means that we can disclose
important information to you by referring you to those documents
filed separately with the SEC. The information we incorporate by
reference is an important part of this prospectus. We
incorporate by reference the documents listed below, except to
the extent that any information contained in those documents is
deemed “furnished” in accordance with SEC rules. The
documents we incorporate by reference, all of which we have
previously filed with the SEC, include:
| • | our Annual Report on Form 10-K for the year ended December 31, 2009, filed with the SEC on March 10, 2010; | |
| • | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, filed with the SEC on May 7, 2010; | |
| • | our Definitive Proxy Statement, filed with the SEC on March 17, 2010; | |
| • | our Current Report on Form 8-K, filed with the SEC on April 21, 2010; and | |
| • | all of our other reports filed with the SEC under Section 13(a) or 15(d) of the Securities Exchange Act or proxy or information statements filed under Section 14 of the Exchange Act since December 31, 2009 and before the date of this Registration Statement. |
Any statement contained in a document that is incorporated by
reference will be modified or superseded for all purposes to the
extent that a statement contained in this prospectus modifies or
is contrary to that previous statement. Any statement so
modified or superseded will not be deemed a part of this
prospectus except as so modified or superseded.
You may request a copy of any of these filings at no cost, by
writing or telephoning us at the following address or telephone
number:
Fidelity
Southern Corporation
3490 Piedmont Road, Suite 1550
Atlanta, Georgia 30305
(404) 240-1504
3490 Piedmont Road, Suite 1550
Atlanta, Georgia 30305
(404) 240-1504
We have filed with the SEC a registration statement under the
Securities Act with respect to the common stock offered hereby.
As permitted by the rules and regulations of the SEC, this
prospectus does not contain all the information set forth in the
registration statement. That information can be examined without
charge at the public reference facilities of the SEC located at
100 F. Street, N.E., Washington, D.C. 20549, and copies of
the material can be obtained from the SEC at prescribed rates.
The SEC telephone number is
1-800-SEC-0330.
In addition, the SEC maintains a web site (www.sec.gov) that
contains periodic reports, proxy and information statements and
other information regarding registrants that file electronically
with the SEC, including us. The statements contained in this
prospectus as to the contents of any contract or other document
filed as an exhibit to the registration statement are, of
necessity, brief descriptions of the material terms of, and
should be read in conjunction with, the contract or document.
In addition, we make available, without charge, through the
“Investor Relations” section of our website,
www.lionbank.com, electronic copies of our filings with the SEC,
including copies of Annual Reports on
Form 10-K,
each Quarterly Report on
Form 10-Q,
each Current Report on
Form 8-K,
and amendments to these filings, if any. Information on our
website should not be considered a part of this prospectus, and
we do not intend to incorporate into this prospectus any
information contained in our website.
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Shares
Common Stock
PROSPECTUS
,
2010
Table of Contents
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 13. | Other Expenses of Issuance and Distribution. |
The following table sets forth all expenses to be paid by the
registrant, other than estimated underwriting discounts and
commissions, in connection with this offering. All amounts shown
are estimates except for the SEC registration fee and FINRA
filing fee.
| Amount to be Paid | ||||
|
SEC Registration Fee
|
$ | 4,100 | ||
|
FINRA Filing Fee
|
6,250 | |||
|
Legal Fees and Expenses
|
325,000 | |||
|
Accounting Fees and Expenses
|
75,000 | |||
|
Printing and Engraving Expenses
|
25,000 | |||
|
Miscellaneous
|
14,650 | |||
|
Total
|
$ | 450,000 | ||
| Item 14. | Indemnification of Directors and Officers. |
Sections 14-2-851
and 14-2-857
of the Georgia Business Corporation Code provide that a
corporation may indemnify its directors and officers against
civil and criminal liabilities. Directors and officers may be
indemnified if they acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interest
of the corporation, if they have not been adjudged liable on the
basis of the improper receipt of a personal benefit and, with
respect to any criminal action, if they had no reasonable cause
to believe their conduct was unlawful. A director or officer may
be indemnified against expenses incurred in connection with a
derivative suit if he or she acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interest
of the corporation, except that no indemnification may be made
without court approval if such person was adjudged liable for
negligence or misconduct in the performance of his or her duty
to the corporation. Statutory indemnification is not exclusive
of any rights provided by any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
Fidelity’s by-laws contain indemnification provisions that
provide that directors and officers of Fidelity will be
indemnified if they are successful on the merits or otherwise in
the defense of any proceeding or any claim, issue or matter
involved in the proceeding. The indemnification provisions also
provide that Fidelity will indemnify directors and officers when
they meet the applicable standard of conduct, regardless if they
are successful in the defense of the proceeding or claim, issue
or matter. The applicable standard of conduct is met if the
director or officer acted in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of
Fidelity. The standard of conduct with respect to any criminal
action or proceeding is met if the director had no reasonable
cause to believe his or her conduct was unlawful. Whether the
applicable standard of conduct has been met is determined by the
board of directors, the stockholders or independent legal
counsel in each specific case.
Fidelity may also provide for greater indemnification than that
set forth in its by-laws if it chooses to do so, subject to
approval by Fidelity’s stockholders. Fidelity may not,
however, indemnify a director for liability arising out of
circumstances that constitute exceptions to limitation of a
director’s liability for monetary damages, as described
below. Fidelity may purchase and maintain insurance on behalf of
any director against any liability asserted against such person
and incurred by him or her in any such capacity, whether or not
Fidelity would have had the power to indemnify against such
liability.
In addition, Article 5 of Fidelity’s Articles of
Incorporation, subject to certain exceptions, eliminates the
potential personal liability of a director for monetary damages
to Fidelity and to the stockholders of Fidelity for breach of a
duty as a director. There is no elimination of liability for:
| • | any appropriation, in violation of his duties, of any of our business opportunities; |
| • | acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
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| • | the types of liability set forth in the Official Code of Georgia Section 14-2-832; or | |
| • | any transaction from which the director derived an improper personal benefit. |
The Articles of Incorporation do not eliminate or limit the
right of Fidelity or its stockholders to seek injunctive or
other equitable relief not involving monetary damages.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or
persons controlling the registrant pursuant to the foregoing
provisions, the Registrant has been informed that in the opinion
of the Commission such indemnification is against public policy
as expressed in the Securities Act and is therefore
unenforceable.
Our directors and officers are insured against losses arising
from any claim against them as such for wrongful acts or
omissions, subject to limitations.
| Item 15. | Recent Sales of Unregistered Securities |
On March 24, 2010, director Rankin M. Smith, Jr.
purchased $1.0 million of our common stock, and on
April 26, 2010, director Millard Choate purchased
$1.0 million of our common stock, both in private placement
transactions exempt under Section 4(2) of the Securities
Act of 1933 and Regulation D. An aggregate of
303,359 shares were purchased. The purchase price for the
stock in both transactions was determined using the same formula
provided for under the terms of our Direct Stock Purchase and
Dividend Reinvestment Plan.
On December 19, 2008, as part of the Capital Purchase
Program, Fidelity entered into the Letter Agreement with the
Treasury, pursuant to which Fidelity agreed to issue and sell,
and the Treasury agreed to purchase (1) 48,200 shares
of Fidelity’s Fixed Rate Cumulative Perpetual Preferred
Stock, Series A, having a liquidation preference of $1,000
per share, and (2) a ten-year Warrant to purchase up to
2,266,458 shares of our common stock, at an exercise price
of $3.19 per share, for an aggregate purchase price of
$48.2 million in cash. The Preferred Shares qualify as
Tier I capital under risk-based capital guidelines and will
pay cumulative dividends at a rate of 5.0% per annum for the
first five years and 9.0% per annum thereafter. The Preferred
Shares are non-voting except for class voting rights on matters
that would adversely affect the rights of the holders of the
Preferred Shares.
On August 20, 2007, Fidelity issued $20 million in
fixed-floating rate capital securities of Fidelity Southern
Statutory Trust III with a liquidation value of $1,000 per
security. Interest is fixed at 6.62% for five years and then
converts to a floating rate, which will adjust quarterly at a
rate per annum equal to the three-month LIBOR plus 1.40%. The
issuance has a final maturity of 30 years, but may be
redeemed with regulatory approval at any distribution payment
date on or after September 15, 2012, or at any time upon
certain events, such as a change in the regulatory treatment of
the trust preferred securities, at the redemption price of
100.0%, plus accrued and unpaid interest, if any.
These Preferred Stock, Warrant and trust preferred securities
were sold in private transactions exempt from registration under
the Securities Act of 1933, as amended (“Act”), and
were not registered under the Act.
| Item 16. | Exhibits and Financial Statement Schedules |
|
Exhibit No.
|
Name of Exhibit
|
|||
| 1* | Form of Underwriting Agreement | |||
| 3(a) | Amended and Restated Articles of Incorporation of Fidelity Southern Corporation, as amended effective December 17, 2008 (incorporated by reference from Exhibit 3(a) to the Company’s Form 10-K filed March 16, 2009) | |||
| 3(b) | By-Laws of Fidelity Southern Corporation, as amended (incorporated by reference from Exhibit 3(b) to the Company’s Form 10-Q filed November 8, 2007) | |||
| 4(a) | Form of stock certificate (incorporated by reference from Exhibit 4A to the Company’s Form S-2 filed November 14, 1997) | |||
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|
Exhibit No.
|
Name of Exhibit
|
|||
| 4(b) | See Exhibits 3(a) and 3(b) for provisions of the Amended and Restated Articles of Incorporation, as amended, and By-laws, which define the rights of the shareholders. | |||
| 5* | Form of Opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC as to legality of securities | |||
| 10(a)# | Fidelity Southern Corporation Defined Contribution Master Plan and Trust Agreement and related Adoption Agreement, as amended (incorporated by reference from Exhibit 10(a) to the Company’s Registration Statement on Form 10, Commission File No. 0-22374) | |||
| 10(b)# | Amended and Restated Supplemental Deferred Compensation Plan (incorporated by reference from Exhibit 10.7 to the Company’s Form 8-K filed January 25, 2006) | |||
| 10(c)# | Fidelity Southern Corporation 1997 Stock Option Plan (incorporated by reference from Exhibit A to the Company’s Proxy Statement, dated April 21, 1997, for the 1997 Annual Meeting of Shareholders) | |||
| 10(d)# | Fidelity Southern Corporation Equity Incentive Plan dated April 27, 2006, (incorporated by reference from Exhibit 10.1 to the Company’s Form 8-K filed May 3, 2006) | |||
| 10(e)# | Forms of Stock Option Agreements for the Fidelity Southern Corporation Equity Incentive Plan dated April 27, 2006 (incorporated by reference from Exhibit 10.1 to the Company’s Form 8-K filed January 18, 2007) | |||
| 10(f)# | Employment Agreement among Fidelity, the Bank and James B. Miller, Jr., dated as of January 18, 2007 (incorporated by reference from Exhibit 10.1 to the Company’s Form 8-K filed January 22, 2007) | |||
| 10(g)# | Employment Agreement among Fidelity, the Bank and H. Palmer Proctor, Jr., dated as of January 18, 2007 (incorporated by reference from Exhibit 10.2 to the Company’s Form 8-K filed January 22, 2007) | |||
| 10(h)# | Executive Continuity Agreement among Fidelity, the Bank and James B. Miller, Jr., dated as of January 19, 2006 (incorporated by reference from Exhibit 10.3 to the Company’s Form 8-K filed January 25, 2006) | |||
| 10(i)# | Executive Continuity Agreement among Fidelity, the Bank and H. Palmer Proctor, Jr., dated as of January 19, 2006 (incorporated by reference from Exhibit 10.4 to the Company’s Form 8-K filed January 25, 2006) | |||
| 10(j)# | Executive Continuity Agreement among Fidelity, the Bank and Stephen H. Brolly dated as of May 22, 2006 (incorporated by reference from Exhibit 10(j) to the Company’s Form 10-K filed March 16, 2009) | |||
| 10(k)# | Executive Continuity Agreement among Fidelity, the Bank and David Buchanan dated as of January 19, 2006 (incorporated by reference from Exhibit 10.6 to the Company’s Form 8-K filed January 25, 2006) | |||
| 10(l)# | Form of 2010 Incentive Compensation Plan among Fidelity, the Bank and James B. Miller, Jr., H. Palmer Proctor, Jr., Stephen H. Brolly and David Buchanan dated as of January 22, 2009 (incorporated by reference from Exhibit 99.2, 99.3, 99.4, and 99.5 to the Company’s Form 8-K filed January 27, 2010) | |||
| 10(m)# | Director Compensation Arrangements (incorporated by reference for Exhibit 10(j) to the Company’s Form 10-K filed on March 15, 2006) | |||
| 10(n) | Warrant to Purchase up to 2,266,458 shares of Common Stock, dated December 19, 2008 (incorporated by reference from Exhibit 4.1 to the Company’s Form 8-K filed December 19, 2008) | |||
| 10(o) | Letter Agreement, dated December 19, 2008, including Securities Purchase Agreement — Standard Terms, incorporated by reference therein, between the Company and the United States Department of the Treasury (incorporated by reference from Exhibit 10.1 to the Company’s Form 8-K filed December 19, 2008) | |||
| 10(p)# | Form of Senior Executive Officer Agreement (incorporated by reference from Exhibit 10.1 to the Company’s Form 8-K filed December 19, 2008) | |||
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|
Exhibit No.
|
Name of Exhibit
|
|||
| 10(q)# | Amendment to Employment Agreement among Fidelity, the Bank and James B. Miller, Jr., dated as of January 21, 2010 (incorporated by reference from Exhibit 99.2 to the Company’s Form 8-K filed January 27, 2010) | |||
| 10(r)# | Amendment to Employment Agreement among Fidelity, the Bank and H. Palmer Proctor, Jr., dated as of January 21, 2010 (incorporated by reference from Exhibit 99.2 to the Company’s Form 8-K filed January 27, 2010) | |||
| 21 | Subsidiaries of Fidelity Southern Corporation (incorporated by reference from Exhibit 21 to the Company’s Form 10-K filed March 10, 2010) | |||
| 23(a)* | Consent of Ernst & Young LLP | |||
| 23(b)* | Consent of Baker Donelson (included in Exhibit 5) | |||
| 24* | Power of Attorney (included on signature page hereto) | |||
| * | - Filed herewith. | |
| # | - Indicates director and management contracts or compensatory plans or arrangements. |
| Item 17. | Undertakings. |
The undersigned registrant hereby undertakes:
(1) For purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan’s
annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
(3) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)
(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time
it was declared effective.
(4) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
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POWER OF
ATTORNEY AND SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on
May 24, 2010.
FIDELITY SOUTHERN CORPORATION
| By: |
/s/ James
B. Miller, Jr.
|
James B. Miller, Jr.
Chief Executive Officer and Chairman of the Board (Principal
Executive Officer)
/s/ Stephen H. Brolly
Stephen H. Brolly
Chief Financial Officer (Principal
Financial and Accounting Officer)
Know all men by these presents, that each person whose signature
appears below constitutes and appoints James B. Miller, Jr.
and Stephen H. Brolly, or either of them, as attorney-in-fact,
with each having the power of substitution, for him in any and
all capacities, to sign any amendments to this Registration
Statement on
Form S-1
and to file the same, with exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of
said attorneys-in-fact, or his substitute or substitutes, may do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
|
Signature
|
Title
|
Date
|
||||
|
/s/ James
B. Miller, Jr. James B. Miller, Jr. |
Chief Executive Officer and Chairman of the Board (Principal Executive Officer) |
May 24, 2010 | ||||
|
/s/ Stephen
H. Brolly Stephen H. Brolly |
Chief Financial Officer (Principal Financial and Accounting Officer) |
May 24, 2010 | ||||
|
/s/ David
R. Bockel Major General (Ret) David R. Bockel |
Director | May 24, 2010 | ||||
|
/s/ Edward
G. Bowen Edward G. Bowen, M.D. |
Director | May 24, 2010 | ||||
|
/s/ Millard
Choate Millard Choate |
Director | May 24, 2010 | ||||
|
/s/ Donald
A. Harp, Jr. Dr. Donald A. Harp, Jr. |
Director | May 24, 2010 | ||||
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|
Signature
|
Title
|
Date
|
||||
|
/s/ Kevin
S. King Kevin S. King |
Director | May 24, 2010 | ||||
|
/s/ William
C. Lankford, Jr. William C. Lankford, Jr. |
Director | May 24, 2010 | ||||
|
/s/ H.
Palmer Proctor, Jr. H. Palmer Proctor, Jr. |
Director | May 24, 2010 | ||||
|
/s/ W.
Clyde Shepherd III W. Clyde Shepherd III |
Director | May 24, 2010 | ||||
|
/s/ Rankin
M. Smith, Jr. Rankin M. Smith, Jr. |
Director | May 24, 2010 | ||||
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